Stevens v. Kelley

• Decision Date: 24 July 1895
• Court: Connecticut Supreme Court
• Parties: STEVENS v. KELLEY.

34 A. 502

66 Conn. 570

STEVENS

v. KELLEY.

Supreme Court of Errors of Connecticut.

July 24, 1895.

Appeal from court of common pleas, New Haven county; Hotchkiss, Judge.

Action by Marshall D. Stevens against Michael Kelley, Jr., for injuries caused by defendant negligently driving against him. From a judgment for plaintiff for damages in triple the amount of the verdict, defendant appeals. Judgment for damages for the amount of the verdict affirmed, and reversed as to the residue.

William B. Stoddard, for appellant.

Earlliss P. Arvine and Louis E. Jacobs, for appellee.

HAMERSLEY, J. In 1797, "An act to regulate stage and other carriage drivers" was passed. The first section provides that whenever the drivers "of any stage, carriage, coach, chaise or other wheel carriage for the conveyance of persons, or of any sleigh, or other snow carriage used for that purpose," shall meet another carriage of like description conveying any person or persons in a contrary direction, and shall have occasion to pass each other, "it shall be the duty of every such driver or drivers of such stages or other carriages meeting each other, if mutual safety require and the ground or way will permit, to turn or bear his carriage, each driver to the right hand, or to slacken his or their pace or gait, or otherwise endeavor to give each to the other a fair and equal chance or advantage to pass." The second section provides that "if any driver or drivers of any such stage * * * shall, by negligence or carelessness, contrary to the true intent and meaning of this act, run against or strike any other such like carriage, horse or horses drawing the same, and thereby cause or occasion any harm * * * to any person or persons therein, or to such horse or horses, carriage, tackle or furniture thereof, or shall in any manner as aforesaid run upon, hit and hurt or injure any person or persons travelling on horseback or on foot, who shall not by any blamable conduct have occasioned such hurt or damage; or if any such driver or drivers shall overrun or overtake any other such like carriage travelling in the same course, and shall run against or strike the same, * * * and thereby do or cause any hurt, * * * such driver or drivers so offending in either case as aforesaid, shall forfeit and pay to the person or persons so hurt and injured, or suffering such damage or injury, threefold damages and costs of prosecution, to be sued for and recovered by action, bill, plaint or information, before any court proper to try the same." The third section provides for an additional fine, payable to the public treasury, if any such driver "shall willingly and of design be guilty of any such act or offense." The fourth section provides that the owner of "any such stage or travelling carriage as aforesaid" shall be liable for any damage which may be recovered of any driver by virtue of the act, if such driver is not able to pay the same, to be recovered of such owner by writ of scire facias. Some years subsequently a fine was imposed for any violation of the first section, and an additional act was passed which provides that when any such vehicle for the conveyance of persons shall meet or overtake a team in the public highway, and shall have occasion to pass the same, the teamster shall turn to one side so as to give such vehicle an opportunity to pass, and, for failure so to do, shall forfeit seven dollars, to be recovered in a qui tam prosecution. With these exceptions, no change has been made in the act of 1797, except such changes in phraseology as have been made in the succeeding revisions of the General Statutes for purposes of brevity and consolidation. This law, in its present form, is contained in sections 2689-2691 of the General Statutes of 1888. These changes were not intended to alter the original purpose and meaning of the act. "The statute, essentially in its present form, had been in existence more than three-quarters of a century. Levick v. Norton, 51 Conn. 471. Section 2690 reads: "Every driver of any such vehicle [for the conveyance of persons], who shall, by neglecting to conform to the preceding section [which lays down the law of the road substantially as in section 1 of the act of 1797], drive against another vehicle and injure its owner or any person in it, or the property of any person, or shall negligently drive against and injure any person, or shall drive against any vehicle traveling the same course and injure any person or the horses or other property of any person, shall pay to the party injured treble damages and costs."

The complaint in this action alleges: (1) The plaintiff was crossing the highway from the townhall to the public square in the town of Guilford; (2) the defendant was traveling over the same highway, in a cross direction from that of the plaintiff, in a vehicle owned by one Michael Kelley, father of the defendant, and being rapidly driven by said defendant; (3) the defendant carelessly and negligently drove against the plaintiff, in endeavoring to pass him; (4) the defendant was driving at a rapid pace, and racing, on said highway, contrary to the statute; (5) by reason of the careless and negligent driving the plaintiff was thrown to the ground and injured; (6) in consequence of said careless and negligent driving and throwing down, the plaintiff sustained the injuries specified; (7) the plaintiff was not negligent, but was using ordinary care; (8) "the plaintiff claims, by force of the statute in such case provided, $1,000."

This is a common-law action to recover damages for negligence, in which the plaintiff may obtain the full measure of any damage he has suffered. It is true that the plaintiff alleges the defendant was engaged in racing on the highway, contrary to the statute, and claims damages by force of the statute; but these misstatements as to the statute may properly be treated as surplusage, and do not prevent the complaint being a valid statement of the common-law action. It was not demurrable, although a motion to strike out the unnecessary words might have been sustained.

The finding of the court below is as follows:

"The jury rendered a verdict in favor of the plaintiff for $125 damages, and his costs. The plaintiff claimed, and asked the court to render judgment for, treble damages. The defendant objected to the court's rendering such judgment, because that, under the facts as alleged and proved, the case did not come within the statute. The court overruled the defendant's claims, and rendered judgment for the plaintiff for treble damages, as appears from record, to which the defendant excepted."

The error assigned in the...