Temple v. Gilbert

• Decision Date: 19 December 1912
• Citation: 86 Conn. 335,85 A. 380
• Court: Connecticut Supreme Court
• Parties: TEMPLE v. GILBERT.

85 A. 380

86 Conn. 335

TEMPLE

v. GILBERT.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by John F. Temple against Frank Gilbert for personal injuries. From a judgment for plaintiff, defendant appeals. No error.

Action to recover damages for personal injuries caused by the explosion of a steam locomotive boiler owned by the New York, New Haven & Hartford Railroad Company, and operated by the defendant as an engineer, brought to the superior court in New Haven county, when the defendant pleaded in abatement to the jurisdiction. The court, Gager, J., found the plea in abatement insufficient, and thereupon ordered that the defendant answer over, and the cause was afterwards tried to the jury before Gager, J. Verdict and judgment for the plaintiff of $5,000, and appeal by the defendant for alleged errors in the rulings and charge of the court No error.

Levi N. Blydenburgh and Charles S. Hamilton, both of New Haven, for appellant.

David E. Fitzgerald and Walter J. Walsh, of New Haven, for appellee.

RORABACK, J. The defendant's plea to the jurisdiction was properly held insufficient. The cause of abatement relied upon was that the defendant was described in the writ as a nonresident of the state, and that the residence of the defendant was described in the writ as follows: "Now of parts unknown, county of New Haven, state of Connecticut." General words may sometimes be explained or qualified by special words which follow the general recital. In the case before us the last clause of the description of the residence of the defendant, the "county of New Haven, state of Connecticut," can have no other purpose than to qualify and limit the general clause immediately preceding. It is not to be assumed that this part of the description was inserted without a purpose, and that just suggested is the only one that can be fairly assigned. When so read in connection with the words "now of parts unknown," it seems clear that it is not a description of a nonresident of the state, but simply that the plaintiff or scrivener drafting the writ did not know where the defendant was "in New Haven county, state of Connecticut"

About 3 o'clock in the morning on April 9, 1909, the plaintiff was seriously injured by the explosion of the boiler of a locomotive engine. The plaintiff at this time was in the employ of the railroad company as head brakeman, and was riding in the cab of the engine with the defendant. The defendant was in charge of the engine, which was drawing a freight train from Bridgeport to Winsted, when the boiler of the engine suddenly exploded with terrific force, and the plaintiff was seriously injured. The plaintiff alleged and claimed that the explosion was due to the carelessness of the engineer in failing to keep a sufficient supply of water in the boiler. The jury found the issues in favor of the plaintiff, and rendered a verdict for him to recover $5,000 which the court refused to set aside.

The court's action in denying the motion to set aside the verdict, in refusing to charge as requested, in the charge as given, and in its rulings upon the admission of evidence were assigned as error by the defendant.

The main question controverted in the court below was the alleged negligence of the defendant, which necessarily involved the question as to the cause of the explosion.

The plaintiff introduced evidence tending to prove these facts. This engine came into the Bridgeport roundhouse early in the evening of the night of the explosion, when it was examined by an engine inspector, who found nothing to indicate but that the boiler and its connections were safe and in good order. The next morning after the explosion the fire box and crown sheet of the boiler were examined by three experts, who testified that the explosion was caused by the failure to keep a sufficient supply of water in the boiler. Evidence was also introduced to show that the engine was in good order when it went out of the roundhouse in Bridgeport, when it was under the charge and control of the defendant, and so continued until about the time of the explosion. There was also other evidence of a circumstantial nature pointing to the defendant as being responsible for the explosion.

The defendant claimed and offered evidence to prove that he did not allow the water to get down in the engine boiler; that when the explosion occurred the boiler was working at about a normal pressure; that he was not bound to account for the accident; and that the trouble apparently was that the boiler at some time prior had been overheated, burned, and weakened; and that the boiler gave way without any warning, and without fault or negligence on his part.

"A trial court should not set aside a verdict as being against the evidence where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they, or some of them, were influenced by prejudice, corruption, or partiality." Steinert v. Whitcomb, 84 Conn. 262, 79 Atl. 675.

Tested by this rule, the evidence in the present case was such as would justify the trial court in denying the motion for a new trial, upon the ground that the verdict was against the evidence.

There is nothing in the evidence to indicate that there was a mistake made by the jury in the application of some legal principle, or to justify the suspicion that the jury were influenced by prejudice, corruption, or partiality. On the contrary, it is apparent that the jury, from the testimony now before us, might reasonably have reached the conclusion embodied in their verdict.

Thirteen assignments of error relate to the court's refusal to charge as requested by the defendant.

The first, second, and sixth requests to charge relate to the issues between the parties and to the burden of proof. The court did not charge in the language of these requests, but its instruction upon these points was unexceptionable. The issues between the parties were clearly stated and the burden of proof fairly explained in the charge.

The defendant, in the third, fourth, and fifth requests, asked the court, in effect, to charge that if the jury should find from the evidence that an accident happened, which could not have been prevented by the use of ordinary care and skill by the defendant, he would not be liable.

In this connection the court said: "The complaint says 'negligently and carelessly.' Negligence is the failure to use that degree of care for the protection of another that the ordinarily reasonably careful and prudent man would use under like circumstances. The defendant in this case was an engineer. So, as applied specifically to this case, negligence would be the failure on his part to use that degree of care and caution to keep the water at the proper point in the boiler which the ordinarily careful and prudent engineer would use under those circumstances under which he was situated. The defendant in this case is liable or not according as he came up, in the management of that engine, to the standard of care that the law imposes. Did he, in managing that engine at the time the explosion happened, and at...