Durham v. Larom , 95 Conn. 475 ( 1920 )

Although the record embraces a transcript of all the testimony, this is not strictly available for our use or enlightenment, as the case has been brought to us. The finding confessedly warrants the judgment, and nothing on the record gives us authority to meddle with it. Our practice has long been settled upon this point, and the course to be pursued, by one who seeks a correction of material facts upon which the judgment rests, has been clearly defined in our decisions. Dennison v. Waterville Cutlery Co., 80 Conn. 596,597, 69 A. 1022; Boughton v. Boughton, 77 Conn. 7,9, 58 A. 226. The plaintiff is without standing here, since he wholly ignores the vital initial step of asking a correction of the finding as a warrant for the ultimate correction of the judgment.

With the record before us, however, we are reluctant to leave this disposition of the case open to the inference that the appeal must have prevailed upon its merits but for the technical insufficiency of the steps taken to get it here. This is not so. The result must have been the same were we permitted to use the certified evidence for the conclusive purpose of its submission on the record.

The trial court could only have found upon the testimony that when the young men in charge ofSachem brought her to her moorings that afternoon, a stiff breeze was blowing straight out of the southwest; that while they were stowing sail, they saw Georgianna, anchored not more than two hundred feet dead to windward, drag at her anchorage and drift straight down upon them; that young Durham at once went aboard Georgianna in Sachem's small boat, and in an effort to stop the drifting, paid out some feet of Georgianna's anchor chain. When this slack had been taken up, the drifting for the moment stopped, and Durham at once returned to Sachem, when, while the work of making that yacht snug was proceeding, Georgianna again dragged her anchor, and bore down upon and collided with Sachem, — the latter by this time having been put in a position where prompt action on her part to escape collision was impossible.

Quite apart, therefore, from any question of negligence on the part of the defendants — which may or may not present other considerations, — it is obvious that the court must have found, upon these facts, the plaintiff guilty of negligence essentially chargeable with the injury. Clearly neither Sachem's time of peril nor her need for watchful caution to avert it, was limited to the actual interval that she lay helpless in the lee of the drifting Georgianna. It did not pass until there was the plainest ground for believing that the mere emergency measure of young Durham for checking the dragging of Georgianna's anchor was effective. The momentary check of the boat's drift when the paid-out slack of the chain had been taken up, was obviously not enough to settle that point, and the court's conclusion is obviously justified by the plain lack of care which this view of the facts exposes, in leaving Sachem helpless and unprotected against a peril of which they had been amply warned, before they had ground for assuming that the peril had been overcome or removed.

There is no error.

In this opinion the other judges concurred.