Post v. Hartford Street Railway Co. , 72 Conn. 362 ( 1899 )

The last four assignments of error in this case relate to the action of the trial court in finding certain facts and in refusing to find certain facts, from the evidence. All of these assignments simply allege error in finding or refusing to find facts from evidence adduced on the trial. It is not claimed that the facts found were found without any evidence, nor that the facts which the court refused to find were admitted or undisputed. By repeated decisions of this court such alleged errors are not reviewable here.Atwater v. Morning News Co., 67 Conn. 504; Hoadley v. SavingsBank of Danbury, 71 id. 599; Standard Cement Co. v. Windham Nat. Bank, ibid. 668; Nolan v. New York, N. H. H.R. Co., 70 id. 159, 173. "Such matters are not reviewable by this court. Printing certified evidence for such purpose is a useless expense." Standard Cement Co. v. WindhamNat. Bank, supra, p. 680; Thresher v. Dyer, 69 Conn. 404,409. For this reason the finding as made must stand.

The assignments of error, relative to the statutory notice given by the plaintiff to the defendant, are not supported by the record and cannot avail the defendant on this appeal. The only claim made with regard to the notice was that it was not sufficiently specific in its description of the injuries received by the plaintiff. This claim was made in the form of an objection to the admissibility of the notice in evidence, and in no other way. The court overruled the objection and admitted the notice in evidence, and the record is that "no exception to this ruling was taken." Under these circumstances the defendant must be held to have waived the objection, and cannot now be heard to insist upon it.

Another point made upon this appeal is that the special facts found do not support the conclusion that the defendant was guilty of negligence. In very many of the cases of this kind the question whether a party has or has not been guilty of negligence is one which will not be reviewed by this court, unless it appears that the trial court failed to apply the correct standard of duty, or violated some rule or principle of law in reaching its conclusion. Bergin v. So. New Eng.Tel. Co., 70 Conn. 54, 64; Nolan v. New York, N. H. H.R.Co., ibid. 159, 191.

Assuming, however, as claimed by the defendant, that the conclusion as to negligence in this case is one which the court will review, the record fails, we think, to show that the court erred in reaching that conclusion. Upon this assumption the important question is whether, before giving the signal to start, it was the duty of the conductor to know that the plaintiff was either safely on board of the car, or so far free from the car that she could not be injured physically by putting the car in motion. We think it was his duty to know this under the circumstances. The conductor knew that the car had stopped to receive a passenger. Before he gave the signal to start he knew the passenger had not boarded the car, and he did not know, and made no reasonable attempt to know, whether she was or was not in the act of getting on board. He thus failed to perform a plain duty devolving upon him, and such a failure, under the circumstances disclosed by the finding, warranted the court in holding that the accident to the plaintiff was due to the defendant's negligence.

In this view of the case the fact that those in charge of the car had no notice of the plaintiff's infirmities is of no consequence.

Upon the facts found we are of the opinion that the trial court did not err in finding that the defendant was negligent.

Upon the trial below the defendant claimed (1) that the plaintiff was entitled to recover in this case only for the damages caused by the accident of January, 1897, and not for any caused by the fall upon the sidewalk in 1895; (2) that it was impossible for the court to distinguish between the damages received by the plaintiff in these two accidents. The court ruled in favor of the defendant upon the first claim and against it upon the second.

Of this last ruling the defendant complains in one of the assignments of error. No question for this court is presented by this assignment. There may have been a practical difficulty in distinguishing between what were the consequences of the earlier accident and what of the later; but there was no legal difficulty in distinguishing between them, and the court made the distinction, and there is nothing in the record to show that it could not legally make it or that it erred in any way in making it.

The last point to be considered is the claim made in relation to the conduct of the plaintiff in this case in her suit against the city of Hartford.

In February, 1895, Mrs. Post was injured by a fall upon a sidewalk in that city, and to recover damages for that injury she sued the city. That suit was tried in May, 1897. Upon that trial both the city and the court were ignorant of the fact that Mrs. Post had been injured by the street-car accident in January, 1897, and in that trial Mrs. Post and her witnesses made no reference to that accident. The defendant claims that upon the record in the present case it fairly appears: (1) that for the purpose of enhancing the damages she might recover in her suit against the city, Mrs. Post in that suit intentionally concealed the fact of her injury in January, 1897, and its results; (2) that in that suit she and her witnesses attributed all her disabilities and pain and suffering, including "the aggravated consequences which flowed from the accident of January, 1897," solely to her fall upon the sidewalk, and thereby caused the court to include in its judgment damages for such "aggravated consequences." For the purpose of the argument merely, it may be conceded that these claims are supported by the record. Upon the facts thus conceded the defendant claims, in substance: (1) that the plaintiff having been once paid by the city of Hartford for the injuries here sued for, is not entitled to recover them again from this defendant; (2) that having practiced a deceit upon the court and city in the former suit, it is against public policy to allow her to recover in this suit.

The first of these claims proceeds upon the assumption that the plaintiff has been already paid by the city for the injuries caused by the street-car accident, and the fact thus assumed is, legally speaking, not true. It is indeed true, upon the conceded facts, that the plaintiff has received from the city money for the injuries caused by the street-car accident; but upon these facts it is equally true that it was wrongfully received by her by means of her fraudulent conduct, and could not, except by the sufferance of the city, be legally retained by her as against the city. This the defendant in its brief concedes, saying that the conduct of the plaintiff "was such a fraud and imposition that upon proper proceedings to vacate the judgment, it would have been vacated and set aside, and the money paid be recovered back." If this be so, if the plaintiff holds this money wrongfully and at the mere sufferance of the city, it is difficult to see how it can be regarded as a payment made by or on behalf of the defendant, so as to discharge it from the duty of paying for the consequences of its own negligence. The mere fact, if it be one, that the city has taken no steps to right the wrong which it is claimed was done to it by the plaintiff, or that it will not or may not ever do so, is of no consequence here. The failure by the city to take any such steps cannot, under the circumstances, so inure to the benefit of the defendant as to make the payment of the judgment by the city a payment of which the defendant can avail itself in the present case.

Nor is the second claim a tenable one. If A, in his suit against B, commits perjury and thereby gains an unjust advantage over B, we know of no rule founded upon public policy which forbids the courts to aid A in recovering in a subsequent suit a just claim which he may have against C. No authority has been cited in support of this claim, nor are we aware that any such authority exists.

Upon the facts found in the present case the plaintiff has a good claim for damages against the defendant, and it has not in any way been waived, discharged nor satisfied, and no reason why the courts should refuse to aid her in recovering it appears upon the record.

There is no error.

In this opinion the other judges concurred.