Gannon v. Sisk , 95 Conn. 639 ( 1921 )

The action is one to recover damages for personal injuries alleged to have been suffered through the negligence of Brown, the driver of a carriage belonging to the defendant Audleys, who was at the time of the accident a servant in the general employment of the Audleys, but under the joint control and direction of the defendants, Sisk Brothers and the Audleys.

The liability of both the Sisks and the Audleys was in issue, as well as the negligence of Brown and the contributory negligence of the plaintiffs.

The defendants were permitted to prove by two witnesses that Brown, the driver of the carriage, was a competent driver. The plaintiffs objected to the offer of this proof, because the issue of Brown's negligent conduct was to be determined by ascertaining whether he was in fact negligent at the time of the accident.

If this evidence was offered for the purpose of disproving Brown's negligence at the time of the accident, it was inadmissible. Skill, competency, or carefulness by one in the performance of a certain kind of work, has no tendency to establish that on a certain occasion he acted with skill and competency and carefulness in the performance of a similar work. A reputation of being a careful driver will not tend to prove that this driver was not negligent upon a given occasion. We have repeatedly so held. State v. Goetz, 83 Conn. 437,76 A. 1000; Budd v. Meriden Electric R. Co., 69 Conn. 272,37 A. 683; Bassett v. Shares, 63 Conn. 39,27 A. 421; Morris v. East Haven, 41 Conn. 252.

The trial court suggests, in its memorandum upon the motion to set aside the verdict, that this evidence was limited to the issue of whether the Audleys had furnished a skilful and competent driver, as raised by the answer. The answer did allege that the Audleys furnished Sisk Brothers suitable horses and an experienced and careful driver, in compliance with its order from Sisk Brothers. And this was their duty as liverymen. But the evidence of these two witnesses was not limited to this issue, but apparently was offered to disprove negligence on the part of the Audleys at the time of the accident. Reference to the claims and objections made at the trial shows this. The court in its memorandum says that this evidence could hardly have harmed the plaintiffs, since the jury were told in the charge that if they found the driver guilty of actionable negligence it was of no consequence that he was in general, or had the reputation of being, a careful and competent driver. But this does not exclude from the consideration of the jury the fact of competency, as one of the factors from which the negligent conduct of the driver might be found; and without such exclusion, we cannot say that it was not used for this purpose, and if so used, it was harmful error.

Preceding this instruction the court charged the jury as to the duty of a liveryman: "It is his duty to furnish a safe coach, harness and horses, and a competent and careful driver. If you find that these defendants, the Audleys, furnished on this occasion a safe coach, safe horses and a competent and careful driver, then they are not liable in this case."

This did correctly define the duty of the liverymen in furnishing the coach, horses and driver to the Sisk Brothers. It did not define the duty of the Audleys at the time of the accident, provided Brown was at that time acting as their servant, or the servant of both Sisk Brothers and the Audleys. If he was then acting as the servant of the Audleys, and the proximate cause of the injuries to the plaintiffs resulted from his negligence, the Audleys would be liable, no matter whether the horses, coach and driver furnished Sisk Brothers were proper or not. Another part of the charge clearly states this, but we cannot say that the jury may not have considered and followed this erroneous instruction.

The court also instructed the jury, in accordance with defendants' request: "In determining whether or not the plaintiffs consented to Sisk Brothers placing their order for the hack in question with the defendant Audley estate and just acted as the agent of the plaintiffs for that purpose, the jury may take into consideration the allegations in the different complaints of the plaintiffs." These complaints set up a joint liability by Sisk Brothers, a copartnership, and by the Audleys, also a copartnership. Sisk Brothers claimed upon the trial that they were gratuitous agents for the plaintiffs in employing the Audleys. The plaintiffs are justified in claiming that this instruction gave to the allegations the weight of admissions tending to prove this claim. The complaints are not susceptible of this construction; their allegations are that both sets of defendants had the management and control of Brown, the driver.

Another of the defendants' requests to charge, given the jury, was, we think, standing by itself, erroneous. "If the jury find that the plaintiffs ratified the act of Sisk Brothers in ordering the hack in question from the defendant Audleys, then the defendant Sisk Brothers is not responsible."

The plaintiffs ordered the carriage of Sisk Brothers. The mere fact that Sisk Brothers ordered it of the Audleys, and thereafter the plaintiffs ratified their act, is no more than saying the plaintiffs thereafter approved of their act. This approval would not affect the question of Sisk Brothers' liability one way or the other. Their contractual relation was with the plaintiffs, and that could not be affected by the plaintiffs approving of what they had done in order to carry out their agreement. And their approval would plainly not touch the situation if the driver of the carriage was, at the time of the accident, under the control of Sisk Brothers.

Plaintiffs complain of the instruction that unless the plaintiffs prove, by the preponderance of the evidence, that the Audleys are partners, the verdict must be for the Audleys. This was one of the requests to charge, made by the defendants, which the court refused to give. The court properly instructed the jury: "If you find no partnership on the part of the Audleys, but you find the responsibility resting on the Audleys for negligent acts, you are entitled to render a verdict against such of them, I say personally, as participated in creating this situation of furnishing the team and the driver."

Complaint is made of the manner in which the theory that the Sisks were acting as agents of the plaintiffs in the employment of the Audleys, was submitted to the jury. We see no error in this. The case was fairly and cogently summarized by the court in its charge, as follows: "If you find that this driver was in the general employment of the Audleys and at the same time in the special employment of the Sisks, and that both had authority over him and control over him at the time of the accident, he had in fact two masters, and where a servant is thus in the employ of two masters, either or both of them may be held for his negligent acts. . . . If you find from a careful consideration of all the evidence that the sole and exclusive control of this driver and team was with the Audleys at the time this accident occurred, then the Audleys, some or all, are responsible for the acts of the driver. If you find the direction and control was in part with the Audleys and in part with the Sisks, then both are liable. And if the exclusive control was at the time with the Sisks, then only the Sisks are responsible, notwithstanding that the team was owned and the driver paid by the Audleys."

Error is assigned in the refusal of the court to charge in the language of Delinks v. New York, N. H. H.R. Co., 85 Conn. 102, 81 A. 1036, as to whether one is guilty of contributory negligence who attempts to escape a peril to which he is subjected by the negligence of another, by doing an act in itself dangerous. The substance, and nearly the form, of this request was given by the court as quoted in assignment of error ten. A better arrangement and order in the charge, and less repetition, would have made the instructions clearer to the jury and quite likely have avoided most of the criticisms of the charge.

The court's own conception of the case did not need to be supplemented by the reading into the charge of the requests of the parties. If requests to charge contain statements which the court desires to incorporate in the charge, these should, if possible, be inserted in the charge in connection with the subject of which they form a part. If this cannot be done, the orderly place for these is after the court has completed the body of the charge and not at the beginning of the charge as placed in the charge before us.

There is error, the judgment is set aside and a new trial ordered.

In this opinion the other judges concurred, except BEACH, J., who dissented.