Murphy v. Derby Street Railway Co.

There is no error in the rulings of the court made upon the trial. The first is disposed of in treating the fourth. The second, in the view we take of the case, is not material. The third is correct. Whether parents are negligent or not in permitting a child to be in the street unattended, is an immaterial question in a suit by the child for injury to it. Daley v. Norwich W. R. Co., 26 Conn. 591,598. This action is based on the injury to the child, and is brought by his administrator under the statute. If it be so that the negligence of the parents might be material in such an action by reason of their expectant participation in the distribution of the amount that might be recovered, nevertheless it must appear that the parents were in a position to be so benefited; and that fact does not appear in this case.Atlanta C. A. L. Ry. Co. v. Gravitt, 93 Ga. 369.

The fourth is the one under which the material errors claimed are assigned. The court ruled that upon the facts the defendant was liable in substantial damages. Such a ruling in this case is equivalent to a conclusion that the fact as settled by the court establish negligence in the defendant, and do not establish contributory negligence in the plaintiff. The conclusion is final unless it appears from the record that the trial court applied to the conduct of the parties an erroneous standard of duty, or that its finding of facts was necessarily influenced by the adoption of some other erroneous rule of law, or that one or more of the subordinate facts found are clearly and necessarily inconsistent with the soundness of the court's ultimate conclusion as to negligent conduct. And so the appeal assigns as error, that the subordinate facts found do not support the ultimate conclusions as to negligence, and the defendant claims in argument that these conclusions are erroneous for all the reasons above indicated.

The only error claimed in the application of a standard of duty, or other rule of law as affecting the finding of negligence in the operation of the car, relates to the duty of the motorman in sounding his bell. The duty of a corporation like the defendant, to use every reasonable precaution to minimize the danger to the public growing out of its exercise of the special privileges granted it in the use of highways, is clear. The reasonableness of a particular precaution against danger, arising from conditions well defined and constantly recurring, may be a question of law. Bunnell v. Berlin IronBridge Co., 66 Conn. 24, 34. It appears from the record that the trial court ruled that whenever a car of the defendant was rapidly approaching a point where, from the existing condition and occupancy of the highway, it was apparent that the danger of injury to the public at that time and place would be materially lessened by sounding the bell, it was the duty of the defendant and of its motorman to sound the bell. This ruling is correct.

But the court went further, and found as a fact that at the time and place in question there was an apparent danger arising from the circumstances of the case, and presenting a special emergency which required the motorman, in the exercise of ordinary care, to sound his bell. It is this finding of fact which is the defendant's real grievance; but this finding of the fact of negligent conduct, under the peculiar circumstances of the case, we cannot review. It is one of those cases where it is impossible for the appellate court (no matter how detailed a statement the trial court may make), to say with certainty whether the error, if any, was in the inference of fact from the whole testimony, or in the inference of law from the facts as they really lay in the mind of the trial court. It cannot know the precise legal inference drawn.Nolan v. New York, N. H. H.R. Co., 70 Conn. 159, 191;Lawler v. Hartford Street Ry. Co., 72 id. 74, 81.

The only error urged that could affect the conclusion as to contributory negligence, rests on the claim that a boy of six years of age of ordinary intelligence is necessarily guilty of contributory negligence in running across a street where there is a street railroad track, without looking in both directions to see if a car is then approaching.

It is, at least, doubtful whether this question is fairly raised upon the record; but assuming that it is, we think the defendant's claim is incorrect. Such conduct may be evidence of contributory negligence in a child as described, but not necessarily conclusive. The court found that under the circumstances of this case it was not conclusive, and that finding is final; Wood v. Danbury, 72 Conn. 69, 73; especially is this true when the burden rests, as it does upon a hearing in damages, on the defendant to prove contributory negligence.

The claim that the subordinate facts found, or any of them, are logically and necessarily inconsistent with the ultimate conclusions as to negligent conduct, is without merit.

There is no error in the conclusion of the trial court that the negligence of the defendant in the operation of its car was a proximate cause of the injury complained of, and that the plaintiff is entitled to recover substantial damages on that ground. This conclusion is sufficient to support the judgment, and there is no occasion to consider the alleged error of the court in holding that the defendant was also liable by reason of its negligence in omitting to equip its car with a fender.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.