Walsh v. Hayes , 72 Conn. 397 ( 1899 )

The complaints in these actions charge the defendant with negligence, first, in loading his wagon with large cakes of ice, one placed on top of another, without being secured in any way whatever so as to prevent them from falling out of the back end upon the slightest jar; second, in failing to put in the tail-board; and third, in using a pair of young and spirited horses, and urging them up a steep grade with the whip; when he knew that children were in the habit of being about the rear end of his wagon for the purpose of getting bits of ice.

The default threw upon him the burden of disproving the negligence thus alleged, and he did disprove it.

That a large cake of ice was in fact jolted out of place while the horses were trotting up hill, and flew out over the tail-board, did not necessarily indicate any want of ordinary care. It was for the trial court to determine, in view of all the attending circumstances, whether a wagon so heavily loaded could be hauled at such a rate of speed over a rough stone crossing, with due regard to the rights of those who might be found upon the highway. The boy who was injured was warned of his danger by one of the defendant's servants as soon as his presence was observed. Only extraordinarily precautions, such as the use of a tail-board extraordinarily high, could have prevented any chance of such an accident. No such standard of care could be required on the part of the defendant.

Error is claimed in overruling the last of the claims (i) made by the plaintiffs on the trial. This claim was one warranted by and pertinent to the facts found, and they were entitled to ask for a ruling upon it. No harm, however, was done by the omission to comply with their request. If the claim had been held good, the effect of the ruling would have been simply that the fall of the ice was of itself sufficient evidence to authorize a finding of negligence on the part of the defendant's servants; but this would have been far from equivalent to holding that it required such a finding, and so would have been of no real service to the plaintiffs. That particular fact, however, was not sufficient even to authorize the award of substantial damages, unless it was due to negligence of the kind charged in the complaint. The defendant was entitled to show, and had shown, that this was not the case. The claim should therefore, in the form in which it was presented, have been overruled.

The plaintiff urges that it is supported by the doctrine stated in certain decisions, that he who for his own purposes brings on his lands and maintains there anything likely to do mischief if it escapes, is prima facie answerable for any damages from an escape not occasioned by the fault of him who suffered them, vis major, the act of God, nor the acts of third persons which there was no reason to anticipate.Fletcher v. Rylands, L. R. 1 Exch. 265, 279; L. R. 3 H. L. 330; Gorham v. Gross, 125 Mass. 232. If this be the law, it cannot avail the plaintiffs, whose cause of action, as they state it, has not only been disproved, but had no connection with anything done on the defendant's land. See Smith v.Boston Gas Light Co., 129 Mass. 318, 320.

The reasons of appeal founded upon exceptions to the finding or to refusals to make certain findings, cannot be considered. Such exceptions can only be taken at the time of making a motion for the correction or alteration of the finding, and as part of it. See Julian v. Stony Creek Red GraniteCo., 71 Conn. 632, 640. The object of this statutory provision that they are to be annexed to the motion (Public Acts of 1897, p. 890, § 9), obviously is that the trial court may be fully apprised that the moving party regards them as of such serious importance that, if his motion be not granted, they will be pursued by appeal. In the case at bar no exceptions were annexed to any of the four motions for corrections in and additions to the finding. Exceptions were subsequently filed as separate papers, but it does not appear that they were ever brought to the attention of the trial judge.

As this, however, is a formal defect in a new matter of procedure, which has not heretofore been made the subject of full consideration by this court, and as no objection to the grounds of appeal on this score was taken by the defendant, we have examined the evidence which was certified up, and are satisfied that it discloses no reason for any alteration in the finding of the trial court. Part of the additions requested are of immaterial or merely evidential facts, and the rest concern matters as to which the testimony was so conflicting that the court might well come to the conclusions which it adopted.

There is no error.

In this opinion the other judges concurred.