Waterbury v. Waterbury Traction Co. , 74 Conn. 152 ( 1901 )

The questions raised by the demurrer to the complaint can be sufficiently considered in discussing the rulings of the court upon questions of evidence and the charge to the jury.

While it is true that the question of the liability of the Traction Company for the injury to Ashborn was not, and could not properly have been made, an issue in the suit against the town, and that upon that point the present defendant could not be affected by the former judgment, it was still competent for the plaintiff to allege in this action, and to prove by evidence outside of the record in the other suit, that the negligent act of the trolley company in taking down the railing and not restoring it constituted the defect which upon the former trial was proved to have caused the injury to Ashborn, and that that was the defect which in the other complaint was described as the failure of the town to maintain a railing at the place described.

After proof by the plaintiff that the defendant had so caused the defect which produced the injury for which Ashborn had recovered judgment against the plaintiff, and of the further fact that the defendant had been notified of the pendency of that suit and requested to defend it, as alleged in the complaint, and had been offered an opportunity to appear and protect its interests so far as it could do so in that action, the record of the former judgment became not only admissible in evidence, but conclusive upon the defendant upon the points stated in the charge, and upon the question of the liability of the town to Ashborn to the amount of that judgment. Upon proof of these facts the defendant, though not strictly a party to the former action, was no longer to be regarded in law as a stranger to the judgment rendered in that suit. If it was offered the same opportunity to protect its interests, which were involved in the first action, as a party to the record in that suit would have had, it was precluded by that judgment from making any defense in this action which it could have made in the other suit had it been made a formal party. 1 Greenl. on Ev. §§ 188, 523; 2 Black on Judg. §§ 574, 575; Big. on Estoppel (4th Ed.), p. 124; Davis v.Smith, 79 Me. 351; Littleton v. Richardson, 34 N. H. 179,187; Spencer v. Dearth, 43 Vt. 98, 106; Mayor, etc., v. Brady,151 N.Y. 611.

It seems clear from the record, that proper evidence was presented tending to prove that the defect in the highway which rendered the town liable in damages to Ashborn, consisted in the fact that the railing in question was down as alleged in the complaint, and it appears further to have been shown by uncontradicted evidence that the defendant received the written notice of the pendency of the Ashborn suit; and that, although its attorneys employed to look after its interests during the pendency of said action did not actually participate in the defense in court, one of them was present at one of the trials taking notes, and that said attorneys were consulted as to the various appeals and steps taken in the defense of said suit, and either advised or approved of the same. Assuming that there was also some legitimate evidence supporting the allegation that the railing was taken down by the defendant, there was no error either in the ruling of the court admitting the former judgment in evidence, or in its charge as to the effect of that judgment.

The notice was not insufficient because in it the town did not offer to surrender the entire defense of the case to the defendant. The Traction Company was not entitled to assume the defense to the exclusion of the town from the case. To render the judgment binding upon the company it was only necessary to show that it had received fair notice and information of the pendency of the suit and of its claimed liability, and been offered such an opportunity to participate in the defense for the protection of its interests as it would have had if it had been a party of record. The notice which was given almost immediately after suit was brought by Ashborn, and long before the trial of that case, informed the defendant of the pendency and character of the action, of the reason why it was claimed to be ultimately liable, and in effect requested it to take part in the defense. No opportunity of defense seems to have been denied it. Having received such notice it seems to have taken such part in the defense as it cared to. Had it desired it could have been made a party, upon its own application to the court. Practice Book, p. 5, § 15. Had the Traction Company chosen to take a more active part in the defense, either as a party or otherwise, the town would still have been entitled to remain in the case, both for the purpose of showing that it was not liable in the action, and for the protection of its claim — which was adverse to that of the Traction Company — that if liable it was upon a ground which gave it a right of action over against that company. Oceanic Steam Nav. Co. v. Compania Trans. EspanolaCo., 134 N.Y. 461; Davis v. Smith, 79 Me. 351, 357;Chicago City v. Robbins, 2 Black, 418.

If the evidence showed that the injury to Ashborn was produced by the alleged wrongful act of the defendant, the fact that the plaintiff failed to perform its duty in not seeing to it that the defendant put up the railing again, and that by such negligence on its part it became liable for the injury to Ashborn, did not deprive the plaintiff of its remedy over against this defendant. The plaintiff and defendant were not in that case to be considered as in equal fault, and the principle that there can be no contribution between joint tort feasors did not apply. As between it and the public it was undoubtedly the duty of the town in such case to properly protect travelers against the danger which the Traction Company had created, and by its failure to do so it became liable in damages to Ashborn. But the primary cause of the accident was the act and fault of the defendant in taking down the railing and failing to restore it, assuming that the defendant took it down as alleged. As between the plaintiff and defendant there was no co-operation in the act of negligence which caused the injury. The plaintiff did not permit the defendant to leave the railing down. If the defendant took it down it promised impliedly, if not expressly, to do so in a way not to endanger public travel, and to put it up again. If it failed to keep that promise it cannot justly charge the plaintiff with negligence, either in having relied upon such promise or in having failed to compel its performance. If the defendant removed the railing and left it down, as alleged, the fact that the plaintiff had knowledge of the defect and neglected to repair it, although it had a fair opportunity to do so, will not prevent a recovery in this action. Hamden v. New Haven N. Co., 27 Conn. 158, 167; Norwich v. Breed, 30 id. 535, 545; Holyoke v. Hadley Co., 174 Mass. 424; BrookvilleBorough v. Arthurs, 152 Pa. 334; Chicago City v.Robbins, 2 Black, 418, 425.

The remark of the court, that the date when the railing was taken down was of no importance, evidently had reference to the question of variance and not of negligence. With the facts before them the jury must have understood it to mean that the allegation of the complaint that the railing was removed on or about July 10th, 1894, would not prevent the plaintiff from recovering if it was in fact removed the latter part of June, the time when both parties claimed the trolley-pole was shifted by the defendant. The jury were clearly told that the plaintiff could not recover if through its negligence the railing was down before the time when it was claimed to have been so removed by the defendant.

There was no error in the charge of the court as to the effect of the plaintiff's negligence upon its right to recover, and the evidence seems to have called for no further instruction upon that subject than was given.

For the purpose of showing that the expense incurred by the town in costs and counsel fees in defending the Ashborn suit was reasonably necessary, the plaintiff was entitled to prove the sums paid to its attorneys for services in the several trials, and that the several appeals and proceedings in such defense were taken by the town either with the advice or approval of counsel for the Traction Company, or in good faith and upon reasonable grounds.

Whether the sums paid by the plaintiff to its attorneys were reasonable charges for the services rendered, and whether the several appeals were acquiesced in by the defendant, and if not, whether they were taken by the plaintiff upon reasonable grounds, were all questions for the jury. Such costs and expenses as were thus shown to have been reasonably necessary, the plaintiff was entitled to recover as part of the natural and direct consequences of the defendant's wrongful act, upon proof that the accident was the result of the defendant's fault and that it was notified to appear and defend the other action, as alleged. 1 Suth. on Dam. (2d Ed.) § 83; Westfield v. Mayo,122 Mass. 100; Duxbury v. Vermont Central R. Co., 26 Vt. 751;Chesapeake Ohio Canal Co. v. County Comrs.,57 Md. 201.

The testimony of Mr. Kendrick, that after final judgment in the Ashborn suit Mr. Terry said to him, "Pay it and then I will talk to you later about it," was inadmissible, and should have been stricken out, had defendant's motion been directed to that part instead of to all Kendrick's testimony, a part of which was admissible. The statement ascribed to Mr. Terry was beyond his authority, under an employment to look after the interests of the Traction Company during the pendency of the Ashborn suit.

Assuming, as we think we may from the record, that the testimony of the plaintiff's witnesses, Wright, McAllenney and Patten, was offered not for the purpose of proving how the railing was put up after the accident, but merely to show that when the map offered in evidence, was made, there had been no material change in the place since the accident, and to explain the map, it was properly admitted.

There was no error in excluding the testimony of the defendant's witnesses Fairclough and Upson. It seems to have been offered to prove that the fact that the railing was down did not cause the accident to Ashborn. As proof that the accident was so caused, the plaintiff seems to have relied entirely upon its claim that that fact had been conclusively established by the former judgment. Such having been the plaintiff's claim, the questions in this case as to the cause of the accident were whether in the former action the fact had been adjudged as the plaintiff claimed, and whether the defendant had received the alleged notice, and not what defect in fact caused the accident. But the inquiry of Fairclough was also inadmissible, because the fact that the railing, when up, was insufficient, did not tend to prove that the fact that it was down at the time of the accident was not the cause of the accident. The questions asked Upson were objectionable for the same reason, and apparently upon the further ground that it had not been shown that Ashborn fell in the manner assumed in the inquiry.

The evidence offered by the plaintiff that on the morning after the accident, Bradley, the defendant's superintendent of the operation of cars, promised to put up the railing, and that it was put up on that day by defendant's workmen at the direction of the defendant's general manager, was improperly received.

This evidence was admitted not as proof that the highway was in fact defective by reason of the condition of the railing as described in the first action, but as in the nature of an admission by the defendant that its workmen had taken the railing down before the accident, as alleged in the present action. Whether the defendant had before the accident taken down the railing which the plaintiff had put up at this place, was the principal issue of fact in the case. Without proof that the defendant had so removed the railing, the plaintiff could not recover. One of the plaintiff's witnesses, Mr. Oviatt, testified in effect that the railing was not taken down by the defendant, but that it was down when the defendant's workmen went to shift the trolley-pole. Notwithstanding this testimony the jury found this issue in favor of the plaintiff, without any direct evidence that the defendant took the railing down, and possibly upon the evidence that the defendant put up the railing the morning after the accident. The question, therefore, whether the fact that the defendant's officers caused the railing to be put up securely when informed of the accident and when requested by the plaintiff's officers to do so immediately, and when told by them that the defendant's workmen had taken it down and neglected to put it up, can, under these circumstances, be regarded as evidence of an acknowledgement by the defendant that the railing had been taken down by its workmen, becomes an important one in this case. In Nalley v. HartfordCarpet Co., 51 Conn. 524, 531, adopting the reasoning in Morse v. Minneapolis St. L. Ry. Co., 30 Minn. 465, it was held that evidence of the repairing, after an accident, of a structure, an alleged defect in which was said to have caused the injury complained of, was not admissible to show the previous defective condition of such structure. In that case, and in Columbia Puget Sound R. Co. v. Hawthorne,144 U.S. 202, the authorities upon that subject are quite fully reviewed. The main ground of the decision of this court in the case cited is, that it would be an unjust rule which would forbid one who had learned of an accident from doing an act to prevent its recurrence except at the risk that his conduct might be held to be an admission of liability for that which had already happened. "The fact," says the opinion, "that an accident has happened and some person has been injured, immediately puts a party on a higher plane of diligence and duty from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend rather than condemn the person so acting." Such evidence is excluded, not because the fact that a highway or structure is repaired does not ordinarily warrant the inference that such repairs were necessary, and that the persons making them were performing a duty, but because to draw such inferences from the fact that repairs have been made by one who has just learned of a serious accident, would be to decide what one should have done before the accident by what he did after it occurred, and would be putting "an unfair interpretation upon human conduct," and because a rule which compels one to choose between refraining to do an act which will prevent other accidents, and making evidence against himself by doing such act, is not the one "best founded in reason, justice and public policy."

We think the same reasons which call for the exclusion of such evidence of subsequent repairs, when offered as an admission of the existence of the alleged defect, require its rejection when offered as proof of an acknowledgment that the defect repaired was the cause of the accident in question, or as an admission that it was the duty of one repairing the defect to make such repairs.

That the action of the defendant's officers in directing the railing to be put up after the accident did not in the case at bar involve an admission of duty on the part of the defendant, is also apparent from the fact that such action may equally well be attributed to their reliance upon the statements of the officers of the town as to how the railing came to be down. But without considering these statements of Wright and the selectman that the defendant's workmen had taken the railing down, the conditions under which the subsequent repairs were made were such as to render it unjust to interpret the conduct of the defendant's officers as an admission that their workmen had in fact taken down the railing. The defendant's general manager was informed that the railing was down near the place where the trolley-pole had been shifted, thereby rendering the highway dangerous for public travel, and that a serious accident had occurred there on the previous night. He was requested by the officers of the town, from whom permission had been obtained to move the trolley-pole, to put up the railing immediately. To do so would involve but slight expense and trouble, and would prevent further accidents and perhaps the loss of life. It may well be presumed that under these circumstances a proper regard for human life would have prompted him to order the defect repaired in order to prevent the possibility of other accidents, though he may at the same time have believed that there was no sufficient ground for a claim that the railing was down through the defendant's fault. Waiving the question of the power of the superintendent of the operation of cars, or of the general manager, to bind the defendant by their admission of its liability for the accident which had happened, we think that as a rule of sound policy their acts in immediately causing the railing to be put up securely should be commended, rather than that they should be construed as an acknowledgment that the defendant was at fault, and be made the reason for subjecting the defendant company to the payment of the damages sustained by Ashborn.

Notwithstanding the testimony of Mr. Oviatt, as a witness for the plaintiff, that the railing was down before the trolley-pole was shifted, it was permissible for the plaintiff to prove that the fact was otherwise, but not, either by argument of counsel or by evidence, to directly attack his character for veracity. Olmstead v. Winsted Bank, 32 Conn. 278, 287;Wheeler v. Thomas, 67 id. 577-580; Barlow Bros. Co. v. Parsons, 73 id. 696.

While the record seems to show that the defendant had some reason to complain of the remarks which plaintiff's counsel were permitted to make during their arguments as to the credibility of Mr. Oviatt, we think it unnecessary to discuss the defendant's exceptions to the charge of the court regarding the reply made by defendant's counsel to such remarks, and to the action of the court in permitting plaintiff's counsel to make statements in the presence of the jury concerning facts which were not in evidence.

There is error and a new trial is granted.

In this opinion the other judges concurred.