Freedman v. New York, N. H. H.R. Co. , 81 Conn. 601 ( 1909 )

The contention of the plaintiff, that the court instructed the jury, by the language of the first three lines of paragraph 4 of the charge as above numbered, that the engineer owed no other duty to the plaintiff than to ring the bell, cannot be supported. It is clear from the context that in the statement complained of the court referred to the general statutory warnings. In the same paragraph the court said it was the duty of the engineer to keep a "vigilant outlook for travelers upon the highway at or near the crossing, so as to avoid injury to them"; and in paragraph 7 that it was incumbent upon him to blow the whistle, or check the speed of the train, if reasonable care required it, in view of the fact that he knew or ought to have known of the perilous position in which Freedman was placed. Whether after he learned, or should have learned, that Freedman was in peril, the engineer did all that a reasonably prudent person would have done to avoid the accident, was fairly submitted to the decision of the jury.

As applicable to the facts of this case, we find no error in the charge of the court or in its refusal to charge as requested, upon the question of the rate of speed of the train as an element of negligence. To transport persons and property rapidly is the principal purpose of railroads. To require railroads to generally so reduce their speed at all grade-crossings as to avoid collisions with persons who may, carelessly or accidentally, be upon the crossing when a train is approaching, would defeat, to a great extent, the purpose of the existence of railroads. To run trains over grade-crossings at a rate of speed reasonably necessary for the accomplishment of the purposes of railroads is always attended with danger. When using its trains for proper railroad purposes it is generally the right of a railroad company, in the absence of legislative restriction, to propel them over highway crossings in the way in which they are usually and reasonably run. Baldwin on American Railroad Law, 408. For the dangers necessarily resulting from so propelling them over grade-crossings, sanctioned by the State, the railroad company is not responsible. Cowles v. New York, N. H. H.R. Co., 80 Conn. 48, 54,66 A. 1020. For the protection, to some extent, of others who may have occasion to use the highways at grade-crossings, the State has, through its legislature and railroad commissioners, assumed the regulation of the conditions upon which railroad companies may propel their cars over existing grade-crossings, by providing, among other things, what signals of approaching trains shall be given (General Statutes, § 3787); that the railroad commissioners may order gates or electric signals, or a flagman, at any railroad crossing in any town, city or borough (§ 3888); that they may permit passenger trains to run past any highway crossing at such rate of speed as they may prescribe, and make orders for the regulation of the speed at which locomotives and cars shall cross highways (§§ 3798, 3893); and that they shall have the exclusive power to regulate the speed of railroad trains within the limits of cities and boroughs (§ 3894).

The evidence was that the train was running at from twenty-five to fifty miles an hour. The complaint alleges as an act of negligence that the rate of speed was high, unlawful and dangerous. It was dangerous, and it would have been if running at the lowest rate named. It was not unlawful in the sense that it was in violation of any order of the railroad commissioners, as it does not appear that they had fixed any rate of speed. The train was apparently run at that rate of speed, for proper railroad purposes. Upon the apparently undisputed facts the jury could not properly have found that the defendant was negligent in merely running its train over this crossing at the rate of speed named, in the absence of any restrictive order of the railroad commissioners. Dyson v.New York N.E. R. Co., 57 Conn. 9, 21, 17 A. 137; Tessmer v. New York,N. H. H.R. Co., 72 Conn. 208, 212, 44 A. 38; Gillette v. Goodspeed,69 Conn. 363, 368, 37 A. 973.

In the first of these cases, this court held that the trial court erred in deciding that the defendant was negligent in running its cars over a city grade-crossing, unprotected by flagman, gate or bell, at a rate of speed of from thirty-five to forty miles an hour. In the second case it was held that the trial court committed no error in deciding that the railroad company was not negligent in running its train over a borough crossing, unprotected by flagman, bell or gates, at a rate of speed of about fifty miles an hour. The crossings in both of the cases were dangerous, and as to affording opportunity to see approaching trains were evidently more dangerous than the one in the case at bar.

In the present case the trial court rightly and very clearly instructed the jury that they might find the defendant negligent, if they found that after the engineer knew or should have known that Freedman was in a position of peril, he failed to slacken the speed of the train or to blow the whistle when reasonable prudence and care required him to do so. Upon the facts before us, apparently the only reasonable grounds for a recovery by the plaintiff were that the engineer negligently failed either to keep a proper lookout in approaching this crossing, or to slacken the speed of the train sooner than he did. These questions of fact were fairly submitted to the jury and were by the verdict answered in the negative.

There was no error in denying the plaintiff's motion in arrest of judgment. Having returned a verdict for the defendant the jury were not required to answer the written interrogatories submitted to them. They were presented by the defendant only, and it appeared upon the face of the writing propounding them that they were to be answered only, in case the jury returned a verdict for the plaintiff. Presumably plaintiff's counsel knew this. If they desired to submit interrogatories, or to have those propounded by defendant answered, in case of a verdict for the defendant, they should have made such desire known before the verdict was rendered. If they understood the interrogatories were to be answered even in case of a verdict for the defendant, they should, when the verdict was returned without such answers, — assuming that the court might then properly have directed them to be answered, — have at least either requested the court to order them to be answered, or have objected to the acceptance of the verdict without the answers, instead of remaining silent until after the jury was discharged. Ward v. Busack, 46 Wis. 407, 1 N.W. 107;Mayo v. Halley, 124 Iowa 675, 100 N.W. 529; Bagley v. Grand Lodge of A. O. U. W., 131 Ill. 498, 22 N.E. 487.

But in their brief, counsel for the plaintiff make the claim, which is somewhat inconsistent with that made in their motion in arrest of judgment, that the trial court erred in submitting these interrogatories to the jury. No such question was raised in the trial court, although the plaintiff apparently had full opportunity to do so. In the absence of objection the plaintiff may be presumed to have assented to the submission of these questions. Willard v. Stevens, 24 N. H. 271, 276;Allen, Cummings Co. v. Aldrich, 29 id. 63. Clearly the question of the power of the court to do so is not raised by the motion in arrest, which only complains of the failure of the court to direct the interrogatories to be answered. The only way in which it can be claimed to be raised by this appeal is by the assigned errors in the charge of the court in which it instructed the jury regarding the answering of the interrogatories.

But as the right of parties to present such interrogatories, and the power and duty of courts to submit them to the jury, are important matters of practice, which have never been passed upon by this court, we shall consider these questions as if they were properly raised by the appeal.

Unlike a large number of our States, the statutes of which upon this subject are discussed by Mr. Clementson in his "Manual Relating to Special Verdicts and Special Findings by Juries," p. 24, Chap. 3, Connecticut has never by express legislation either regulated or authorized the submission of such interrogatories to juries in the trial of cases. Section 757 of the General Statutes authorizes a special verdict by which the jury may find the facts and refer the questions of law to the determination of the court. Though they may to some extent both subserve the same purpose, there is still a material difference between special verdicts and findings by responses to interrogatories. By the former no unconditional general verdict is rendered, but the jury find the facts and submit the question of law arising upon them to the court. 1 Swift's Dig. s. p. 774. By the latter, answers pertinent to, and perhaps controlling, although not necessarily fully covering, an issue framed, are given, always in connection with a general verdict. Clementson on Special Verdicts, 45. The purpose of the former is to furnish the basis of a judgment to be rendered, and of the latter, by eliciting a determination of material facts, to furnish the means of testing the correctness of the verdict rendered, and of ascertaining its extent. First National Bank v.Peck, 8 Kan. 660; Chicago N.W. Ry. Co. v. Dunleavy, 129 Ill. 132,22 N.E. 15; Durfee v. Abbott, 50 Mich. 479, 15 N.W. 559.

The power of the trial court to submit proper interrogatories to the jury, to be answered when returning their verdict, does not depend upon the consent of the parties or the authority of statute law. In the absence of any mandatory enactment, it is within the reasonable discretion of the presiding judge to require or to refuse to require the jury to answer pertinent interrogatories, as the proper administration of justice may require. Dorr v. Fenno, 12 Pick. (Mass.) 521; Spaulding v.Robbins, 42 Vt. 90. In Walker v. New Mexico So. Pac. R. Co.,165 U.S. 593, 597, 17 Sup. Ct. Rep. 421, Justice Brewer, in delivering the opinion of the court, said: "The putting of special interrogatories to a jury and asking for specific responses thereto in addition to a general verdict is not a thing unknown to the common law, and has been recognized independently of any statute." It has been for a long period the settled practice in the courts of our sister New England States to propound such interrogatories to the jury, although Rhode Island is, we believe, the only one of them in which the practice has been sanctioned by statute. Clementson on Special Verdicts, p. 16, Chap. 2. In Newell v. Roberts, 13 Conn. 63, 73, the defendant pleaded four defenses, upon each of which issue was joined. There was a general verdict for the defendant, under the instruction of the court that the jury might return such verdict upon finding a certain fact. This court, by WILLIAMS, C. J., said that while it was not prepared to say that the verdict would not do entire justice to the parties in the case, it might, in its consequences, injuriously affect their rights beyond that suit, and that the parties had a right to an expression of the triers upon each of the distinct points so in issue. In Frazier v.Harvey, 34 Conn. 469, 470, which was an action on a warranty, with the common counts in assumpsit, a general verdict for the plaintiff having been returned, the court inquired of the jury if they found the warranty proved. They replied that they did not. A new trial was granted upon the ground that there could be no recovery upon the common counts, and there was no criticism of the action of the court in so interrogating the jury. It has been the common practice in this State, when a complaint contains several counts for distinct causes of action, for the court to direct the jury, in case of a verdict for the plaintiff, to designate upon which count it was found. Morris v. Bridgeport Hydraulic Co.,47 Conn. 279, 291; Spencer v. New York N.E. R. Co., 62 id. 242, 251, 25 A. 350. In Johnson v. Higgins, 53 Conn. 236, 241, 1 A. 616, the court, by STODDARD, J., said: "The practice obtains generally in this State rather to direct the jury to return verdicts upon each of several distinct counts embracing independent matters, than to obtain the required information by inquiry of the jury, or by framing special verdicts, although both of the two latter modes have been resorted to."

While we cannot expect from a jury such a special finding, as may be required of a court, of the facts upon which its judgment is founded, it is feasible and often necessary, and especially as affording the basis of a possible appeal where generally every intendment is in support of the verdict, that some of the elements which enter into the verdict may appear upon the record. Carroll v.Bohan, 43 Wis. 218. For this purpose the presiding judge has the power to submit written interrogatories to be answered by the jury upon returning a general verdict. When and to what extent this should be done, and when and how counsel may request interrogatories to be propounded, is, to a great extent, in the absence of any statute or rule upon the subject, the duty of the trial court in the exercise of a reasonable discretion to determine. Nudd v. Burrows, 91 U.S. 426, 439; Spurr v. Inhabitants ofShelburne, 131 Mass. 429.

We shall not attempt to formulate definite rules for determining accurately in every case just what interrogatories may be so submitted to the jury. It may, however, be well to state the following, as some of the general requisites of such permissible interrogatories: They should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law. No question should ask for the finding of a purely evidential fact nor of an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which may be of material weight in deciding it. No interrogatory should be permitted, the response to which cannot serve either to limit or explain a general verdict, or aid in proceedings for a subsequent review of the verdict or judgment which may be rendered.

We do not find it necessary to decide whether the seven questions propounded conform to the principles above stated. It is sufficient to say that we find nothing in them to justify the conclusion that the necessity of answering them, had they rendered a verdict for the plaintiff, may have induced the jury to return a verdict for the defendant.

There is no error.

In this opinion the other judges concurred.