Martin v. Sherwood, Receiver

The demurrer to the complaint was properly overruled. The complaint alleges that the accident was caused by the fact that, through the negligence of the defendant in failing to maintain and keep in repair a bridge or structure over the tracks of the defendant's railroad in the town of Winchester, the planking upon the surface of the bridge was so worn out and decayed as to be dangerous to public travel.

Section 2673 of the General Statutes provides that "any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; . . . and when the injury is caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor."

Chapter 244 of the Public Acts of 1893 provides that "it shall be the duty of railroad companies to maintain and keep in repair all structures heretofore or hereafter erected over their tracks at any highway crossing, and the approaches to the crossings when the same are made with plank surface, and also to keep in repair the surface of the highway, including the planking or other surface material of the highway upon such structure, and it shall be the duty of the municipality where such bridge or bridges are located to notify any agent of the railroad company owning such bridge or bridges or structure of any defect in the same, and such notice shall be in writing." This Act expressly repealed all Acts inconsistent therewith.

The facts showing that it was the defendant's duty, under the Act of 1893, to make the repairs in question, having been set forth in the complaint, no further allegation of duty was necessary; nor was the plaintiff required to allege either that the railroad company owned the bridge, or that the company had placed it upon or over the highway, since the claimed liability of the railroad company, under § 2673, arises entirely from its duty, under the Act of 1893, to keep the surface of the highway upon the bridge in repair, and such duty does not depend either upon the defendant's ownership of the bridge, or upon the fact that it was placed upon the highway by the defendant's company.

It was also unnecessary for the plaintiff to allege that the town of Winchester had given written notice to an agent of the company of the defect complained of.

We understand the claim of the receiver, as made by demurrer, objection to evidence, and requests to charge, to be that the giving of such notice by the municipality is, by the Act of 1893, made a condition precedent to any liability upon the part of the railroad company to a person injured by means of a defect in such bridge; that although the Act expressly provides that it shall be the duty of the railroad company to make these repairs, and although all inconsistent Acts are expressly repealed, the effect of the provision, making it the duty of the municipality to give notice of any defect in the bridge, is to wholly relieve the railroad company from the duty of making the repairs until such notice has been given, and to absolve the company from all liability for injuries caused by defects of which the company had not received such written notice, the sole duty to make the repairs and the sole liability for injuries remaining in the meantime upon the municipality.

Whatever effect the failure of the municipality to give written notice to the agent of the railroad company of the defect in question might have in proceedings between the company and the town, the giving of such notice by the town is not a condition precedent to the right of the plaintiff to maintain this action against the railroad company. The Act neither expressly nor impliedly states, at least so far as the rights of third parties are concerned, that the duty of the railroad company to keep such bridges in repair shall not begin until written notice of some defect has been given by the municipality. As to this plaintiff it was the duty of the railroad company to keep the bridge in repair, although no written notice had been given by the town of the defect complained of, and therefore § 2673 gives to the plaintiff a right of action against the railroad company for injuries sustained by reason of its negligent failure to perform that duty.

It is unnecessary to decide whether the town was also liable to the plaintiff, or whether, by failing to give the required notice, the town has become liable to the railroad company; since in neither case is the company thereby absolved from liability to this plaintiff.

As neither the plaintiff nor the town of Winchester requested the latter to be made a codefendant, and as a complete determination of the questions involved between the plaintiff and the railroad company did not make it necessary that the town should be made a codefendant, the court properly held, in sustaining the demurrer to the answer, that that was no reason for making the town a party.

There was no error in the refusal of the court to strike the case from the jury docket. From the action of the defendant in bringing the town into court, and in alleging in the answer which was demurred to that the town alone was liable, the plaintiff was justified in assuming, until the demurrer was decided, that it was undeterminable whether any issue was joined by the defendant's denial.

The testimony of the plaintiff of her bodily pain after the accident, and even at the time of the trial, was clearly admissible to show the character and extent of the original injury.

Testimony of other witnesses was admissible of such complaints of pain by the plaintiff after the accident as might properly be regarded as expressive of and elicited by existing feeling. "An individual receives a wound, and, before his recovery, complains of suffering from it. His complaint is evidence of his suffering and its degree, because it is the natural language of the feelings which such a cause produces."State v. Dart, 29 Conn. 153, 155. But unless the complaints are made to a physician with the view to medical treatment (Wilson v. Granby, 47 Conn. 59, 76), the proof should be limited, upon proper objection, to such complaints as are the natural and instinctive expressions of present suffering. Evidence is not admissible of complaints which are but narrations of past sufferings (Rowland v. Philadelphia, W. B.R.Co., 63 Conn. 415, 419), or which consist simply of answers to questions, or are merely descriptive statements or assertions of the existence of present suffering (Williams v. GreatNorthern Ry. Co., 68 Minn. 55, 59; Keller v. Gilman,93 Wis. 9), or which, though made to a physician, are with the view of using him as a witness at the trial. Darrigan v.New York N.E. R. Co., 52 Conn. 285, 309.

The record does not show that the trial court erred in its rulings as to the admissibility of such complaints. The question to plaintiff's mother, which was objected to, was: "With reference to her complaining of pain when you saw her, whether or not she did?" The answer was: "She complained of pain more or less." The other two witnesses testified that at various times while the plaintiff carried her arm in a sling she complained of pain in her arm. The objection made to the question asked the first witness, and to the answers of the other two, was "on the ground that the evidence was a declaration in her own favor." This objection the court overruled.

Since neither the question nor the answers ruled upon indicate the language of the complaints, it cannot be said that the court held that complaints in the nature of narratives, or which were mere descriptive statements of pain, might be proved. The objection was not to the form of the question, or answers, but apparently to the proof of any complaints of pain. Had the defendant desired to have the question or answers limited to such complaints as were apparently the natural expressions of existing pain, his objection should have been in such form as to fairly indicate that claim to the court.

There is no error.

In this opinion the other judges concurred.