Zeigler v. Danbury & N. R. Co.

• Decision Date: 05 September 1885
• Citation: 2 A. 462,52 Conn. 543
• Court: Connecticut Supreme Court
• Parties: ZEIGLER v. DANBURY & N. R. CO.

2 A. 462

52 Conn. 543

ZEIGLER

v. DANBURY & N. R. CO.

SUPREME COURT OF CONNECTICUT.

Filed September 5, 1885.

Appeal from superior court.

Action for damages for injuries received by a collision on defendant's road.

Henry B. Graves and Walter S. Judd, for plaintiff.

John H. Perry and Winthrop H. Perry, for defendant.

CARPENTER, J. This is an action for damages for injuries received by a collision of two trains on the defendant's road. The case comes up on the plaintiffs appeal from a judgment in favor of the defendant. The main question discussed is whether the plaintiff was an employe of the defendant. The defense, however, raises a question of variance, which we will first consider. The complaint alleges that the "plaintiff was an employe of the Shepaug Railroad Company, of said state, and was a brakeman in his business for said Shepaug Railroad, and, as such employe, was riding on a train of said Shepaug Railroad Company between Danbury and Bethel, in said county of Fairfield, over and on the track of the railroad of the defendant, as he lawfully had a right to do, under said Shepaug Railroad Company, as its employe and servant, and that while so lawfully riding he was injured," etc. The finding shows that the plaintiff was hired and paid by the Shepaug Railroad Company; that he was on a train run by that company, between Litchfield and Danbury, a part of the way over its own road, and a part of the way over the defendant's road; that while it was on the defendant's road the train was subject to its rules and regulations; that the train hands "were directly under the orders of the defendant's officers, the same as if employed by them, and were accountable to the defendant's officers for the proper performance of their duties; and so fully was this so that the defendant's officers had the right to discharge any of them for neglect or any improper conduct while on that road." This it is claimed is a fatal variance, as it misstates the plaintiffs position, and his reason for being on the train and on the defendant's road. We think this is altogether too technical. It is tripping the plaintiff up and turning him out of court on a legal technicality. It required him to know the legal effect of a contract between his employer and the defendant,—a contract of which he knew little or nothing. Whatever may be the legal effect of that contract in other respects, we think he might properly describe himself as in the employ of the Shepaug Railroad Company, and as being on a train run by it. The time, place, circumstances, and manner of the accident are the same. The variance relates to the legal relations which the plaintiff, and the train on which he was, sustained to the two railroad companies. So long as the defendant was not deceived or misled as to any matter of fact, the plaintiff was not required to state those legal relations with technical accuracy.

In the next place it is claimed that there is a variance in respect to the method of the injury. The complaint alleges a collision, by reason whereof he was thrown out and from the train, and was scalded and burned and otherwise injured. The finding is that, by the collision, he "was terribly burned, one of his hip bones was fractured, and he received other severe, and, in all probability, permanent injuries." We discover no variance here. The substance of the allegation is that the plaintiff was injured by the collision, and the proof seems to have fully sustained it. In respect to the relation of the plaintiff to the defendant, two views may be taken: (1) That he was an employe of the defendant; and (2) that he was an employe of the Shepaug Company, and, as to the defendant, a third person or stranger. We will consider the case in both aspects.

If he was an employe of the defendant, and the accident was caused by the negligence of a fellow-servant, without fault in the defendant, then the rule which prevails in this state would exonerate the defendant from liability. But is it entirely clear from this finding that the defendant was without fault? The "night freight" was a train running from Norwalk to Danbury. It was nearly six hours behind time. The collision occurred on that part of the defendant's road which was between Danbury and Bethel, the only part of the road over which both colliding trains ran. The conductor of the "night freight" left Bethel on a single-track road at a time which would make a collision with the "Litchfield freight" inevitable, provided the latter train left Danbury on time. The finding is that the collision was occasioned solely by the negligence of the conductor in charge of the night freight train. This finding is ambiguous. It may mean, and probably does, that there was no negligence on the part of the plaintiff, or those in charge of the other train. If that is the extent of its meaning, then there is no finding as to the negligence of the defendant,—an all-important fact in the case; for, if the defendant was negligent in failing to employ a suitable conductor on the night freight, or in failing to have in operation a reasonably safe system for controlling and directing irregular trains, it is clearly liable to one of its employes. "It is those risks alone which cannot be obviated by the adoption of a reasonable measure of precaution by the master, that the servant assumes." Pantzar v. Tilly Foster Min. Co., (N. Y.) 2 N. E. Rep. 24. And this is so even in Massachusetts, where the rule is adhered to more rigidly, perhaps, than elsewhere. McGee v. Boston Cordage Co., (Mass.) 1 N. E. Rep. 745.

Is it not entirely consistent with this finding that the defendant was in fault? Yea, more, does it not appear affirmatively, not expressly, but as a necessary conclusion from the facts stated, that it was so? Let us carefully examine the finding with a view to an answer to this question. A freight train was due at Danbury at 1:45 a. m. At 7:30 a. m. it was on a single-track road between Bethel and Danbury, approaching Danbury; and the Litchfield freight left Danbury on its regular time, 7:30 a. m., going in the opposite direction, so that the trains must come together. Was the conductor of the Litchfield train notified to hold his train at Danbury until the arrival of the night freight? Evidently not. Is a...