McCarthy v. Consolidated Ry. Co. , 79 Conn. 73 ( 1906 )

At highway crossings a street car has no paramount right as against any other vehicle approaching on the cross street. The right attaching to each is equal and must be exercised with due regard to that attaching to the other, and so as not to interfere with or abridge it unreasonably. It is not necessarily the duty of the driver of an approaching team to wait until the street car has passed, nor is it necessarily his right to push on and cut off its advance. Each party must act reasonably under all the attending circumstances. The driver of an ordinary vehicle can, under ordinary circumstances, be justified in proceeding, at a highway crossing, to go over a street railway in the face of an approaching car, when, and only when, he has reasonable ground for believing that he can pass in safety if both he and those in charge of the car act with reasonable regard to the rights of each other. The duty to slow up or stop, if necessary to prevent a collision, rests equally on each party.

In practical effect these doctrines give any railroad car approaching a highway crossing what amounts to a right of precedence. This follows from the rule respecting contributory negligence. No man has the right to calculate close chances as to his ability to reach the track before the car, and throw the risk of injury on the other party. As to whether the chances were close, however, and the railroad company were not the one really in fault, or whether the party injured did not push forward under circumstances of emergency which left him no time for calculation, will ordinarily be a question for the jury, or in case of a default, for the court in assessing damages. Lawler v. Hartford Street Ry. Co., 72 Conn. 74, 82, 43 A. 545.

The trial court has found, in the present case, that each party to the collision was in fault, and that the fault of the intestate contributed to the injury. These conclusions were conclusions of fact, and must stand unless they are inconsistent with other primary or subordinate facts which have been specially set forth. Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 693, 58 A. 5.

The facts of that nature on which the plaintiff relies, aside from those already mentioned, are that the body of the wagon was low, with a turning space of only about eight inches between it and the inner rim of the forward wheel; that Smith Avenue sloped slightly downward, at its intersection with Quinnipiac Avenue; that the view of one traveling over Smith Avenue, toward Quinnipiac, of the latter, was almost shut off by obstructions until he came within 50 feet of the railway tracks, and partially obscured until he came within 30 feet of them; that the accident occurred on a clear, warm day in October, when there had been no frost for forty-eight hours, and the tracks were in their usual condition; that the motorman had never run a car on this piece of the railway before that day; that he testified on cross-examination that by applying the brake, and on its failure reversing the power, he could stop such a car within ten feet, if the rails were in good condition; and that the conductor was not called as a witness by the defendant, nor any excuse shown for his absence.

The facts thus detailed were proper subjects of consideration by the trial judge. They were considered by him, and there is nothing in any or all of them not fully consistent with the judgment rendered.

The motorman testified for the defendant that he could not bring the car to a stop more quickly because the rails were slippery on account of leaves which lay upon them, and frost. On cross-examination he was shown a copy of the written report of the accident which he made to the company (and which it had been stipulated might be used in place of the original), and asked if it contained any statement that the rails were slippery, or anything as to leaves or frost.

The question was properly excluded. The paper occupied by stipulation the position of the original report, and was therefore the best evidence of the contents of that document.

An application was filed in this court to rectify the appeal, by making certain changes in the finding, and was met by a written motion by the appellee for its dismissal.

Such a motion was unnecessary and improper. All the objections which were brought forward by it were apparent on the face of the application, and the place to state and urge them was in such brief as might be filed in opposition to granting it.

One of these objections is that an application to rectify an appeal, under General Statutes, § 800, can only be made in cases where no remedy is afforded by General Statutes, §§ 795-797.

The matters as to which the appellant has asked us to rectify the appeal he has not otherwise presented upon exceptions, and we have therefore entertained his application.Adams v. Turner, 73 Conn. 38, 47 note,46 A. 247; McCusker v. Spier, 72 Conn. 628, 630, 45 A. 1011;State v. Hunter, 73 Conn. 435, 445, 47 A. 665.

A deposition taken in its support was not finished until the day before the opening of the term, and the appellee objected to its reception on the ground that it came too late. An application of this character with all its incidents is in its nature so summary a proceeding that we have concluded to receive and consider the deposition.

The appellant asks us to strike out of the finding the statement that the intestate saw and heard the car before he stopped his team, because there was no direct evidence of it. It was, however, a fair matter of inference from his opportunity to see and hear it.

Another statement which it was alleged was made upon no evidence is, that there was nothing to prevent his remaining where he stopped his team. This, also, was a conclusion which could properly be drawn from the attending circumstances.

Nothing else in the application merits discussion, and it is denied.

There is no error.

In this opinion the other judges concurred.