Shalley v. Danbury & B. H. Ry. Co.

• Decision Date: 29 June 1894
• Citation: 64 Conn. 381,30 A. 135
• Parties: SHALLEY et al. v. DANBURY & B. H. RY. CO.
• Court: Connecticut Supreme Court

30 A. 135

64 Conn. 381

SHALLEY et al.

v. DANBURY & B. H. RY. CO.

Supreme Court of Errors of Connecticut.

June 29, 1894.

Appeal from superior court, Fairfield county; F. B. Hall, Judge.

Action by Margaret Shalley and another against the Danbury & Bethel Horse-Railway Company to recover damages for personal injuries. A demurrer to the complaint was sustained, and plaintiffs appeal. Affirmed.

Lyman D. Brewster and Samuel A. Davis, for appellants.

Samuel Tweedy and Howard B. Scott, for appellee.

TORRANCE. J. The defendant is a corporation owning and operating a street railroad in the towns of Danbury and Bethel. By the provisions of its charter, it is made the duty of the defendant, among other things, to keep in repair that portion of the streets and highways over which its railway is laid down, and a space of two feet on each side of its tracks, without expense to the municipalities through which its road is laid, or to the owners of land adjoining said railway. The complaint alleges in substance that on the 21st of September, 1892, in the course repairs to the defendant's tracks at the corner of West and Montgomery streets, in Danbury, "the same were, by said railway company, negligently and carelessly left at night in a hazardous and dangerous condition, by reason of the natural soil or earth between and around said tracks having been removed by said company to a considerable depth, viz. six inches or more, and said tracks were left exposed without lights by said company, or other warning to those in passing vehicles on the public highway," and that the plaintiff, on the night of said 21st of September, while riding with her husband in a vehicle on said highway at the comer of Westand Montgomery streets, "drove upon and across said railway tracks, then and there being in said negligent and dangerous and exposed condition, and with no lights or warning to give notice of their condition, and said Margaret Shalley was violently thrown from said vehicle upon the ground," and sustained the injuries for which she now seeks to recover.

No statutory notice of the accident or injuries was alleged to have been given, but the complaint, in paragraph 4, sets forth in detail certain facts which the plaintiffs claimed either amounted to a waiver of the required notice by the defendant, or estopped the defendant from availing itself of the want of such notice. That paragraph reads as follows: "Said John Shalley, husband of Margaret Shalley, and in her behalf and for himself, on the following day, viz. September 22, 1892, called upon and informed Mr. Samuel C. Holley, president of, and fully authorized to act for, said railway company, of said injury; stated to him the time, place, and circumstances of the injury; the occasion thereof, and made demand of the company for damages. At said interview said Holley, president as aforesaid, acting for, and with full power to act for, said railroad company, and who was well aware of the dangerous condition of said railway, after questioning said John Shalley, and ascertaining fully the cause, nature, and extent of her, the said Margaret Shaliey's, injuries, then and there acting for said railway company, and authorized so to do, told said John Shalley that he must present his claim for damages, after he found out the whole damage, to the insurance company which insured the said railway company against losses, and not to the said railway company, as the said railway company had nothing to do with the losses or damages in such cases, and denied said railway company's liability. Said Holley, then and there acting for said railway company, and authorized so to do, informed and assured the said John Shalley that the insurance company would see to it, and directed said John Shalley to wait, and follow said Holley's instructions. Said plaintiff, relying on the said statements, assurances, and instructions of the defendant, made by the said Holley, acting for said defendant, and because of said statements, assurances, and instructions, did not give any written, statutory notice to said railway company, within the sixty days after said, injury was received, as provided by statute. The said railway company, subsequently to the expiration of said sixty days, and before this suit was brought, sent their physician, with plaintiff's consent, to examine said Margaret Shalley, and made said examination as part of their evidence in this case, and has, since the expiration of said sixty days, by negotiation, always treated said liability as subsisting, and said notice as waived. Now, said railway company, by its denial of liability, as aforesaid, to said plaintiffs, and by its misleading the plaintiffs, as aforesaid, in regard to said notice on the day after said injury, with full knowledge of the facts, and by said subsequent conduct, has waived said statutory notice."

To this complaint the defendant demurred for the following reasons: "(1) It appears therefrom that no written notice of the injury, and of the nature and cause thereof, and of the time and place of its occurrence, was left with the defendant, or any of its officers, within sixty days from the time of the accident, as required by law. (2) The matters alleged in said complaint as an excuse for failure to give such statutory notice are not sufficient excuse for such failure. (3) The matters alleged in said complaint to constitute a waiver by the defendant of such statutory notice do not constitute such waiver. (4) The defendant cannot be estopped by reason of anything alleged in said complaint from denying said waiver, or from claiming said statutory notice." The court below sustained the demurrer, and thereupon judgment was rendered for the defendant.

It thus appears that the principal question upon this appeal is whether the...