Hubert v. New York, N. H. H.R. Co. , 90 Conn. 261 ( 1916 )

The reasons of appeal challenge the correctness of the trial court's action in sustaining the demurrers to the motions for a disclosure; but its action in sustaining the demurrer to the motion, as finally amended and perfected, alone calls for consideration.Arnold v. Kutinsky, 80 Conn. 549, 552,59 A. 350; Boland v. O'Neil, 72 Conn. 217, 220, 44 A. 15;Mitchell v. Smith, 74 Conn. 125, 127, 49 A. 909. Even as to this, inquiry as to its propriety, in view of the several objections presented to the motion by the demurrer, is rendered unnecessary in the present situation. It is sufficient to notice that the plaintiff was not harmed in any way by his failure to obtain a disclosure as to any matter covered by his motion concerning which he was by any possibility entitled to one. Counsel in their brief say that all they were seeking to establish was "the fact as to the interstate nature of the shipment, the character of the package, and the date and circumstances of the injury." This statement adds one object sought, the last stated, to those indicated in the motion, and may be safely accepted as comprehensive.

As to the date and circumstances of the injury, these certainly were not matters presumed to be exclusively within the defendant's knowledge. The plaintiff must be presumed to have known when and how he was injured, and no reasons are shown why he did not. His complaint had already set out these matters with apparent fulness of detail, and upon the trial he, professing knowledge, testified concerning them. Any knowledge which the defendant might have had would not, under ordinary circumstances, be its exclusively, and the present circumstances were not shown to have been exceptional in that regard. It would appear, therefore, not only that the plaintiff was not deprived of the desired information in support of his case by the failure to have a disclosure in these particulars, but also that he clearly was not entitled to one, since the facts were not shown to lie exclusively within the knowledge of the defendant. Downie v. Nettleton, 61 Conn. 593, 595,24 A. 977.

The failure to secure a disclosure of information bearing upon the interstate character of the shipment could have possessed no importance save as it may have deprived the plaintiff of proof of the interstate character of his employment at the time he was injured, and thus as showing that his right of recovery was governed by the Federal Act. The plaintiff testified that he was engaged in the capacity of brakeman and freight-shifter on a train carrying freight and running from the freight-yard of the company in Harlem, New York, to Stamford, Connecticut, when, in the course of that run, he was injured at Westchester, New York, while engaged in the transfer of freight from one car to another upon the train, and that he continued on the train in the performance of his duties to the end of its run at Stamford. There appears to have been no question made by the defendant upon the trial that any injury received by the plaintiff upon its train, as described, was an injury to him while employed by it in interstate commerce and, as such, subject to the provision of the Federal law. It is difficult to discover how under the testimony there could have been. New York Central H.R. R. Co. v. Carr, 238 U.S. 260, 263,35 Sup. Ct. 780; North Carolina R. Co. v. Zachary, 232 U.S. 248,259, 34 Sup. Ct. 305; St. Louis, S. F. T. Ry. Co. v.Seale, 229 U.S. 156, 159, 33 Sup. Ct. 651. The court practically told the jury that it might be so assumed. Clearly the plaintiff lost nothing in this regard by reason of the absence of a disclosure.

In the matter of the character of the package, the plaintiff professed to have knowledge of the material facts in that regard, and he testified to its character, approximate weight, and contents. A disclosure could have supplied nothing of material importance in either of these particulars.

Several complaints are made of the charge. One concerns an isolated sentence in the following language taken from one of the defendant's requests: "If you should find, in accordance with the defendant's claim, that the alleged accident never took place, or if you are unable to determine from the evidence, considering it all, whether it ever took place or not — that is, if you are doubtful about it, if you have any doubt, after considering all evidence, — or are unable to determine whether it took place or not, then your verdict should be for the defendant." It is said that the jury were here, in effect, told that the burden of proof was upon the plaintiff to establish the fact of accident beyond a doubt. Assuming that the doubt of which the court here spoke was one which remained, notwithstanding a preponderance of evidence in favor of the plaintiff's contention, and that the language quoted, critically analyzed, bears the construction plaintiff's counsel put upon it, that construction and the deduction drawn from it are neither obvious nor calculated to impress the ordinary listener, but rather are to be arrived at by processes of close literary criticism. The jury had already been told repeatedly, and in plain and direct language, that the only burden upon the plaintiff to entitle him to a verdict was one to support his material allegations by a fair preponderance of proof — clearly explained to mean the better and weightier evidence, and it is scarcely believable that the jury, taking the whole charge together, could have understood their instructions otherwise.

Other complaints addressed to the charge are that the instructions upon the subject of contributory negligence and the burden of proof in that matter were inconsistent and confusing. The complaint presented the case in two aspects, to wit: its common-law aspect, if the Federal statute was not controlling, and its aspect if that statute did govern by reason of the interstate character of the employer and employment. The court followed the example thus set by the complaint, and first dealt with the legal principles applicable to the case as one at common law, and rightfully placed upon the plaintiff, in that event, the burden of showing the absence of contributory negligence on his part as a condition precedent to recovery. It then passed to a consideration of the differences to be observed in the decision of the case and the award of damages if the Federal statute, and not the common law, was to control, as it practically told them that, under the evidence, it did. In this part of its instructions, and in supplemental instructions given when the jury was recalled, the court clearly explained that the fact that the plaintiff's injury was caused by the negligence of a fellow-servant would be no bar to recovery, and dwelt at length upon the provisions of the Federal Act relating to contributory negligence, both in the matter of the measure of damages and the burden of proof. In the supplemental instructions the jury were distinctly told that by the terms of the United States statute the plaintiff was not called upon to prove, as a condition precedent to recovery, that he was exercising reasonable care and that he did not materially contribute to his injuries by his negligence, and that he was not required to assume that burden of proof. Inconsistency between the two portions of the charge there was not. The two counts rested upon different foundations, called for the application of different principles, and required at the hands of the court, if the charge was to be commensurate with the complaint, instructions pertinent to each. Sisson v. Stonington, 73 Conn. 348,352, 47 A. 662. Whatever seeming inconsistency or want of harmony there may have been, and whatever confusion may have arisen, was not the result of wrongful instructions, but of the two-sided case the complaint presented. After the final instructions, given in such a way as to impress them most strongly upon the jury's attention, their minds could hardly have been left in a state of doubt or confusion, harmful to the plaintiff, as to where the burden of proof in the matter of contributory negligence lay.

It is charged that the court erred in telling the jury, under the circumstances of the case, that, if the plaintiff had in his possession records or copies of records procured by him which he was unwilling to produce, they would be entitled to draw an inference unfavorable to him concerning that record, provided they found it contained any testimony which would have been material to, or admissible under, the issues. The contention is, not that this statement was unsound as an abstract proposition of law, but that as respects the situation in this case, to which it was apparently addressed, it was liable to be misunderstood, misapplied and misleading, for the reason that the so-called copy of record, whose nonproduction was involved, was not, as the court itself ruled and held, shown to be a sufficiently accurate copy to be admitted in evidence. Assuming that the instruction was susceptible of this misunderstanding and misapplication, it is manifest that the plaintiff was not in fact harmed by it in view of the verdict of the jury first agreed upon and its subsequent change as the palpable result of the court's instructions, accompanying the return of the jury to a second consideration, which concerned only the matter of dates. Clearly it did not stand in the way of the jury's decision in favor of the plaintiff.

The complaint that the court erred and showed bias in favor of the defendant (1) in over-emphasizing the importance of the defendant's records of the movements of its trains and trainmen, kept in the course of its business, and produced to show that the plaintiff's injury could not have been received as he testified; (2) in reciting, with great particularity, the defendant's evidence; and (3) in magnifying the burden imposed by law upon the plaintiff, is without foundation. The records were of such a character, and dealt with so many details, that a careful summary of what they purported to disclose was not only proper, but necessary, to their understanding by the jury, and we discover nothing in the summary, as made by the court, or in its comments upon the evidence summarized, that was other than fair and impartial. Neither do we discover anywhere in the language used, or in the comments made by the court, anything either indicative of bias on its part or transgressing its clear right of comment. State v. Rome, 64 Conn. 329, 338, 30 A. 57;Crotty v. Danbury, 79 Conn. 379, 387, 65 A. 147; State v. Marx, 78 Conn. 18, 28, 60 A. 690.

The reasons of appeal to which the plaintiff's counsel appear to attach the most importance, are those, several in number, which relate to the action of the court following the jury's report of their agreement upon a verdict for the plaintiff, including its return of them to a second consideration, its instructions then given to them, its subsequent acceptance of a verdict for the defendant, and its refusal to set aside that verdict.

In this connection it is first charged that their return for reconsideration was in excess of the court's authority, since the decision at which the jury had arrived was in strict accord with both the evidence and the instructions which had been given. It is true, as plaintiff's counsel urge, that our statute in terms limits the power of a court to return a jury for a reconsideration to situations in which the court judges either that "the jury have mistaken the evidence in the cause and have brought in a verdict contrary to it," or that they "have brought in a verdict contrary to the direction of the court in a matter of law." General Statutes, § 756. This limitation, however, it will be noticed, is one which affords a court a wide latitude for the exercise of the power conferred. The limits of that power were not exceeded in the present case. The court was of the opinion, and had reasonable grounds for that opinion, in view of the evidence, that the jury had either disregarded its directions explicitly given to them, that they could not find that the plaintiff had sustained his alleged injury upon some day concerning which there had been no evidence, and without warrant in the evidence in the case, or else had mistaken that evidence. That this opinion was well founded appears quite clearly from the result of the jury's reconsideration, when examined in connection with the instructions which accompanied their return to it.

The real question to be considered, touching the court's action at this point, arises out of these instructions. The appellant claims that they were not only incorrect in themselves, but also inconsistent with those previously given, so that there was a practical refusal to accept a verdict returned in conformity with the earlier instructions, and a practical direction to render one to be reached upon a different basis.

The instructions were correct. Their gist is over-looked in the appellant's criticism. It is to be found in the proposition, twice stated, that the verdict must be based upon a finding that the accident occurred upon some day, bearing upon which there was evidence presented. This was the legal proposition asserted. The remainder of the court's remarks were but its application to the situation presented by the evidence in the case.

The proposition is certainly a sound one, unless it be that a jury is permitted to render a verdict which has no other foundation than speculation or conjecture. A finding that an accident happened upon a particular day, without evidence of some sort to support it, is a finding upon speculation or guess, or worse. Of course, witnesses may be uncertain or mistaken in the matter of dates, and in their evidence assign wrong ones to events. If, in such case, the evidence in other parts sufficiently indicates that fact, the jury may find the fact to be accordingly. Such a finding is not unsupported by testimony. On the contrary, it is founded upon testimony. A jury may follow the testimony wherever it reasonably leads, but they cannot jump to conclusions which have no support in evidence. The legal principle here given by the court for the guidance of the jury was but the statement of a simple corollary to the broad, general, elementary proposition that no fact can be found without evidence.

In passing upon the propriety of the application of this legal principle to the concrete situation before the jury as the court made it, we need to recall what that situation was. The plaintiff had testified that the accident to him happened upon either the 11th or 12th of May. His employment in the defendant's service, in so far as the testimony of either party showed him at work, was confined to the days from May 10th to May 16th inclusive. There was no testimony indicating that he was ever in the Westchester freight-yards before the 10th, and it was undisputed that he went to the hospital on the 19th, some days after he quit work. There not only was no direct testimony of injury received by him at any other time than between those dates, but indirect evidence to that effect of every sort was wanting as well. There were no circumstances shown which pointed, even remotely, to that situation, or from which an inference could be drawn that such was the true state of the case.

In view of this situation, the court was entirely justified in indicating to the jury the practical consequences, as far as the verdict was concerned, of the legal proposition it had stated to them in abstract terms, and in specifically telling them, as it did, that a consequence of that principle was that they were limited by the evidence to finding that the plaintiff was injured upon some day from May 10th to May 16th inclusive.

Especially is that true in view of the circumstances surrounding this case, and the character of the defense interposed, which was in the nature of an alibi, that is to say, that the plaintiff was not at the place of the claimed accident at the time assigned to it, and, therefore, that he could not have been injured as claimed. The plaintiff is indeed correct in saying that the allegation of time contained in the complaint was not material, and that it was permissible for the plaintiff under it to make proof of another day. His difficulty here, however, arose not from the pleadings, but from the fact that the evidence, as presented by the parties, had made the dates covered by it material, and confined the plaintiff's right of recovery to the occurrences of some day to which it either directly or indirectly related. State v. Ferris, 81 Conn. 97, 100, 70 A. 587. Any other rule would be disastrous to a defendant in a position similar to that occupied by this one, and would open a door for escape from a defense like that it interposed in this case, if reasonably established, and to an appeal to the jury for a verdict based upon speculative grounds only. Plaintiff's counsel in their brief characterize the evidence furnished by the defendant's records as "essentially persuasive in its character so far as those days were concerned," that is, the days from May 10th to May 16th. Their position amounts to this: that the jury should have been told that it mattered not that their evidence had been successfully met and overcome, and that, in spite of that fact, and of the further fact that there was an entire absence of proof of injury at any other time, they were at liberty to find such injury and return a verdict for the plaintiff.

Plaintiff's counsel are quite right in saying that the essential thing they were called upon to establish was the fact of injury, and that the date upon which it was received was an immaterial detail. But they undertook to establish the fact of injury by proof of injury under certain circumstances and conditions, among which were the circumstances of time and place. Those circumstances thus at once became material in a determination of the fact of injury in issue. Disproof of injury at the time and place as testified, in the absence of proof indicating that the claimed injury was received at some other time or place, was disproof which left the plaintiff without proof of the essential fact of injury.

Nor were the instructions given at this time inconsistent with those previously given. The same fundamental and controlling legal proposition was in most explicit terms stated to the jury before their agreement on a verdict. In response to their request for further instruction upon this subject, the court said: "Of course, you must find — in order to find that it did happen, you must find evidence applying to some particular day. You cannot find that the accident happened on some day concerning which no evidence has been introduced." And the same principle was embodied in earlier instructions. The instruction complained of differs from those previously given only in that it made a more pointed and precise application of the controlling rule already given to the jury, and now repeated, to the evidence in the case. The language in which the application is couched is in itself less general and more specific than that used earlier, but the greater generality of the earlier instructions is, after all, in appearance rather than in effect, since the emphatic statement, that there could be no finding that the plaintiff was injured upon some day concerning which there was an entire absence of testimony indicating that he was so injured, was embodied in it to limit and qualify it. In substance and effect the final instructions conform to those previously given.

The conclusions already arrived at afford a sufficient justification for the court's denial of the plaintiff's motion to set aside the verdict and grant a new trial, without inquiry as to the propriety of such procedure to obtain a review and revision of claimed errors of law committed by the court. Andersen v. State,43 Conn. 514, 516; Zaleski v. Clark, 45 Conn. 397, 403;Etchells v. Wainwright, 76 Conn. 534, 541, 57 A. 121.

Two or three other reasons of appeal, relating to minor matters, do not call for discussion. They are without merit.

There is no error.

In this opinion the other judges concurred.