Trasacco v. New York, N.H. & H. R. Co.

• Decision Date: 22 June 1931
• Citation: 113 Conn. 355,155 A. 493
• Parties: TRASACCO v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

155 A. 493

113 Conn. 355

TRASACCO v. NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

June 22, 1931

Appeal from Superior Court, New Haven County; John Richards Booth Judge.

Action by Pasquale Trasacco against the New York, New Haven &amp Hartford Railroad Company, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The case was tried to the jury. Judgment for defendant, and plaintiff appeals.

No error.

MALTBIE, C.J., dissenting in part.

Samuel Campner, George E. Gordon, and Everett B Morris, all of New Haven, for appellant.

Fleming James, Jr., of New Haven, and Edward R. Brumley, of New York City, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HINMAN J.

On April 29, 1929, the defendant was engaged in repairing a portion of the Olive street bridge over its tracks, in New Haven. The bridge runs approximately north and south, with a roadway twenty-nine feet in width in the center, and a walkway seven to eight feet wide on each side. The repair in progress at the time consisted in renewing the planking of the west walkway, at the northerly and southerly entrances of which a plank and red flag had been placed. The old planks of this walkway had been torn up for a considerable distance and, at the time, a space about thirty feet long was open, in which new planks had not been laid. Between the roadway and the walkway were iron girders, part of the superstructure of the bridge, consisting of a horizontal girder, ten inches wide, the top of which was twenty-eight and one-half inches above the floor of the bridge and, above it, diagonal girders forming triangular spaces eleven feet four inches long at the base. Parallel with the horizontal girder and seven and one-half inches from it, on the side next the roadway, was a pipe sixteen inches in diameter, resting on blocks, the evidence as to the height of which varied from one-half inch to six inches. The total width, from the westerly side of the girder to the easterly side of the pipe, was thirty-three and one-half inches. At the time of the accident a gang of about six men was working on the repairs, and another employee of the defendant, an electric lineman, was standing on the iron pipe, near the point where the plaintiff fell, for the purpose of safe-guarding the workmen from high tension wires which ran under the bridge.

The plaintiff claimed and offered evidence that he, at that time thirteen years of age, with another boy was on his way home from school, walking on the west sidewalk of Olive street; on approaching the bridge from the north, they saw the west walkway blocked, and instead of crossing over to the east walkway, which was open, proceeded on the roadway of the bridge alongside the pipe above, mentioned; while so crossing the bridge, in order to escape an automobile, as hereafter stated in more detail, both boys jumped up on the pipe; plaintiff's companion caught hold of one of the diagonal girders, but the plaintiff lost his balance and fell through the aperture in the walkway onto the tracks below, sustaining serious injuries. The defendant offered evidence that the plaintiff came out of the yard of his home, south of the bridge, ran upon the roadway of the bridge, and jumped or stepped on the pipe; that there was no automobile on the bridge at the time, and no child other than the plaintiff; and that none of the defendant's servants knew of his presence until he fell.

The appellant argues in support of his appeal, from the denial of his motion to set aside the verdict, that the physical facts pertaining to the locus of the injury, especially the claimed insufficiency of the protection along the side of the portion of walkway under repair afforded by the pipe and the girder, so conclusively established negligence on the part of the defendant in failing to provide additional safeguards, that the jury could not reasonably have exculpated the defendant. The sufficiency of the protection to meet the requirements of reasonable care under the circumstances apparently was the most important question in the case, but the barrier formed by the pipe and the girder was not so manifestly and indubitably inadequate, in view of the general situation, as to render the lack of further obstructions negligent as a matter of law or to preclude the jury from absolving the defendant from negligence in that respect. Donnelly v. Rochester, 166 N.Y. 315, 319, 59 N.E. 989; Norwood v. Somerville, 159 Mass. 105, 112, 33 N.E. 1108. It is beyond a proper exercise of our functions to overrule the verdict on the ground above mentioned, or for any of the subsidiary reasons also advanced.

All of the additional reasons of appeal are defective in form, in that they are framed as a quære (" whether the court erred" ), a practice of which we have repeatedly disapproved. Stamford Extract Mfg. Co. v. Stamford Rolling Mills Co., 101 Conn. 310, 311, 125 A. 623. However, in the exercise of our discretion, we consider the assignments on their merits, entertaining a hope that compliance with the forms annexed to the new Rules for Appellate Procedure (insert, Practice Book 1922, p. 306) may minimize future occasions, for criticism. The appellee also alleges a breadth and indefiniteness of certain of the assignments which it claims, with some apparent reason, embarrassed and misled it in meeting the appeal.

The appellee seems to have construed the first of these assignments as questioning the accuracy of the charge as to the legal requirement concerning notice of the closing of the walkway on the bridge to the public, and prepared its brief accordingly. It develops, however, that the appellant's criticism relates to inadvertent references by the trial court to closing of the " street." There was not claim or evidence that any portion of the bridge other than the west sidewalk was closed, and, reading the entire portion of the charge on the subject, we recognize no reasonable possibility that the slight and partial confusion of terms complained of could have misled the jury in any material respect.

The next error alleged relates to an instruction, in connection with the duty of the defendant to maintain signs and barriers that such duty did not require the maintenance of a barrier " that could not be climbed over, jumped over, or gone around." The trial court charged, correctly, that the test of the sufficiency of protection provided was whether the barriers were such as a reasonably prudent person would have erected, and whether such a person would have erected barriers between the sidewalk and roadway of the bridge, in addition to the pipe and girder, and this instruction was so frequently and emphatically repeated that the jury could not have misapprehended the true applicable rule. The qualification complained of, that barriers, to satisfy the test, need not be insurmountable, was sound. Carey v. Kansas City, 187 Mc. 715, 728, 86 S.W. 438, 70 L.R.A. 65; Gavin v. Chicago, 97 Ill. 66, 71, 37 Am.Rep. 99; Maginnis v. Brooklyn (City Ct. Brook.) 7 N.Y.S. 194: Id., 126 N.Y. 644, 27 N.E. 852. Moreover, there immediately followed a repetition of the general rule: " As I have said at the very outset and through the charge, the governing question is whether or not this defendant acted as a reasonably prudent person would have acted."

The record discloses that the occasion for reference in the charge to the principle of " falsus in uno, falsus in omnibus" was by no means confined to the single contradiction mentioned in connection with the reason of appeal pertaining thereto, and the defendant, equally with the plaintiff, was exposed to the possibility of disadvantage accruing from its application, dependent upon which of conflicting versions was credited by the jury.

The plaintiff offered evidence that, as he and his companion were walking along the roadway of the bridge, an automobile came out of an intersecting street at the south end of the bridge and turned north onto it, and in so doing swung over to the west side of the roadway; that...