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(108 A.)

principal, of all of the provisions of the ordi- [tion, which apparently has only a single obnance under which he received his license ject. When condensed, they amount to this: to act as an auctioneer. The ordinance em- That the auctioneer shall keep accurate acbodies several provisions in addition to the counts, report them to the city collecting ofone prescribing the original license fee of $25 ficer, and coincident with such report, pay and the subsequent sales percentage pay- to him the amount shown to be due thereon. Some of these additional provisions The information machinery set up in the ordiare altogether unrelated to the matter of pay-nance and the information sought to be supments, and clearly are separable from those plied thereby, if regarded as separated from that are so related. Section 6 contains such Section 6 contains such the payment requirements, would seem to be provisions which relate to and regulate the altogether useless to the city, and, as far as licensed auctioneer's conduct. It is apparent, it appears, not adapted to any end it has in therefore, that the ordinance's requirement view. We are therefore unable to discover that the sales percentage payments be made how the provisions in question can reasonably would not invalidate the whole ordinance. be regarded as requirements of the ordinance Its portions, wholly separable from that sub- separable from and unconnected with the ilject, would remain effective, and the obligors legal attempt to exact the percentage payon the bond given for the faithful perform- ments and not carried down in its downfall. ance of the ordinance would remain liable for

The superior court is advised to render its judgment sustaining the demurrer to the complaint.

Costs in this court will be taxed in favor of the defendant.

The other Judges concurred.

(94 Conn. 131) CARLSON v. CONNECTICUT CO.

Dec. 22, 1919.)

1. RAILROADS 357-EMPLOYMENT OF INCOMPETENT AND INEXPERIENCED TRAINMEN NOT IN ITSELF NEGLIGENCE.

its faithful performance in all its valid parts. In the present complaint there is no allegation of the breach of the bond arising out of noncompliance with the clearly separable provisions contained in section 6 or elsewhere. The only allegation of breach is, to quote the language of the complaint, that the defendant "has never filed with the city treasurer a true copy, signed and sworn to by him, of an account of said sales or of the name of the owner, the place, date, or amount of said (Supreme Court of Errors of Connecticut. sales, nor has he accounted to or paid to said city the moneys due said city upon said sale under the provisions of said ordinance and the terms of said bond." It therefore ⚫ becomes pertinent to inquire whether or not the provisions of section 4, which prescribe that each auctioneer shall keep an account of his sales, the name of the owner of the property sold, the place, date, and amount of sale, and on the first Monday of each month file a true and sworn copy of the same with the city treasurer, have any other purpose than as incidental to the sales percentage payments and as supplying aids in the enforcement of the collection of those payments I which the auctioneer is called upon to make simultaneously with the filing of his monthly reports.

The employment of incompetent and inexperienced trainmen is not in itself negligence, making railroad liable for the injuries to person on track, the company being liable only in the event of some negligent act by trainmen, regardless of their experience or competency. 2. RAILROADS

398(1)-EVIDENCE INSUFFI

CIENT TO SHOW INCOMPETENCE OR INEXPERI-
ENCE OF TROLLEY CAR TRAINMEN.

Evidence that the trainmen operating the trolley car which struck plaintiff had been employed by defendant for only one month, and had been on the particular run only four or five days was insufficient to warrant a finding that they were inexperienced and incompetent. 3. APPEAL AND ERROR 1064(1)-INSTRUC

TION BASING RECOVERY ON EMPLOYMENT OF
INCOMPETENT TRAINMEN WITHOUT REQUIR-
ING THAT TRAINMEN BE NEGLIGENT PREJU-
DICIAL ERROR.

In action for injuries to man on track, inbecause of employment by railroad of inexstruction authorizing finding of negligence perienced and incompetent trainmen, without regard to whether the accident was the result of some negligent act of the trainmen, was prejudicial error.

It is, perhaps, supposable that the city might for the purposes of regulating the conduct of the business carried on by auctioneers desire the information which would be supplied by such returns as those prescribed. It is, however, difficult to conceive of such a purpose in connection with anything which the defendant city has undertaken to do. But, whether so or not, the language of the ordinance and its provisions indicate too plainly to be mistaken that the city, in its adoption, had no other end in view to be achieved by section 4 than the enforcement of the collection of the sales percentage payments defined in the following section. The It is the duty of the court to submit to the provisions for the accounts, reports, and jury no issue foreign to the facts in evidence, payments are closely tied up to each other, or in respect to which no evidence has been and together comprise the whole of the sec-offered.

4. TRIAL 252(1)—ISSUES SUBMITTED MUST

BE WARRANTED BY EVIDENCE.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

TO RAILRoad.

5. RAILROADS 390-KNOWLEDGE OF PER-space easterly of the tracks was covered with SON'S PRESENCE ON TRACK NOT IMPUTABLE a growth of uncut grass of varying length. The defendant claimed that this grass was so Where plaintiff had been lying near track high that all of the plaintiff's body, except so as to be more or less concealed by grass his feet, was concealed from view as he lay some distance from traveled roadway in an at the time he was injured; the plaintiff, unlighted locality, and where no car had pass-that it was not of sufficient height and chared for one-half to three-quarters of an hour before the accident, and no agent of the railroad had occasion during such time to be in such vicinity, knowledge of his presence on the track will not be imputed to the railroad except as such knowledge was or ought to have been gained by motorman as his car approach-ployer, which was near station No. 33, on the

ed.

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acter to hide the plaintiff as he lay in it. The time of the accident was about midnight, and the place in the open country where there were no street lights.

The plaintiff had left the home of his em

evening of the day in question to visit Hartford. He remained in the city until nearly 11 o'clock, and drank during that time, as he himself admitted, two glasses of beer and one of whisky. At 10:55 he boarded one of the defendant's cars to return to his home.

In action for injuries to one asleep by the side of a trolley line track adjoining the traveled roadway of a highway, instruction on last clear chance doctrine, which predicated liability upon the acquisition by a motorman of knowl-At station No. 28, which is about one mile edge, either actual or implied, of plaintiff's from his destination and a half mile south exposed position, and ignored requirement un- of the fare limit station, which was No. 31, der such doctrine that motorman have oppor-he, for some reason which he was unable to tunity after acquiring such knowledge to avoid explain, left the car and started in the direcharm by the exercise of reasonable care, held tion of his home on foot. From that time until he was run over by the car some one-half or three-quarters of an hour afterwards, he was not, as far as is known, seen by any one, and in the meantime no car passed the point of accident in either direction.

error.

Appeal from Superior Court, Hartford County; William S. Case, Judge.

Action by Ernest Carlson against the Connecticut Company. Judgment for plaintiff, and defendant appeals. Error, and new trial.

September 28, 1918, the plaintiff was injured by being run over by one of the defendant's trolley cars. He was at the time lying asleep by the side of the defendant's tracks, with one or both of his feet extending over one of the rails. As a result of his injuries both his feet had to be amputated just above the ankle.

The car which occasioned the plaintiff's injuries was proceeding in a southerly direction toward Hartford. It was equipped with a powerful headlight, and was running at a speed variously estimated from 15 miles an hour upward. In the front vestibule of the car, in addition to the motorman, was a constable of the town of South Windsor in uniform. He was employed by and acting under the orders of the selectmen of the town to keep a lookout for persons or other obstructions which might be upon the trolley tracks at a late hour on Saturday nights. At that time there was in the town a large number of tobacco growers and a very large acreage of tobacco. This industry called to the town during the growing and harvesting season a large number of employés, more or less of whom were likely to be found upon the highway at a later hour on Saturday nights than at other times. This the defendant motorman well knew, as he did also the reason for the constable's presence on his car.

The plaintiff lived with and was employed by one Reardon, who resided in South Windsor, and upon the main highway between Springfield and Hartford, along which the trolley line between those two cities runs. The point of injury was near the Company's station No. 28. The trolley line was here a single track, one laid along the east side of the traveled way, an improved road surfaced with Warrenite. Its westerly rail was some five or six feet east of the easterly edge of the Warrenite. The intervening space was not improved for public travel. On the out- As the car approached and passed the spot er, or easterly, side of the east rail was a where the plaintiff lay, neither the motorman strip of land within highway limits about nor the constable saw him. The motorman, nine feet in width. This strip was wholly however, felt a jar, which caused him to unimproved and unused by travelers. Im- think that he had run over something. He mediately east of the tracks and for a dis- brought the car to a stop as soon as possible, tance of some four or five feet, the ground and requested the conductor to see what had was slightly lower than the surface of the happened. The latter's investigations having ties upon which the rails were laid, and from proved unsuccessful, the motorman reversed that point rose gradually to the highway his power, and backed his car to and beyond boundary. At that point the land was some the point where the plaintiff lay. When it two feet higher than were the tracks. The had fully passed, the rays of the headlight

(108 A.)

revealed the presence of the injured plaintiff. [ligence is removed-absolutely removed-from The plaintiff claimed that the injury to his this feature of the case." right leg was caused by the second passage of the car; the defendant, that both legs were injured when the car first passed.

John T. Robinson, of Hartford, for appellant.

Joseph P. Tuttle, Jacob Schwolsky, and Morris Blumer, all of Hartford, for appellee.

PRENTICE, C. J. (after stating the facts as above). [1] The portion of the charge first complained of was called out by the allegation in the complaint that the plaintiff's

The defendant claimed to have shown that the motorman was keeping a proper lookout ahead and giving proper attention to the performance of his duties, and that neither he nor the constable, who stood at his side, saw the plaintiff or any portion of his body before the car struck him, and that their fail-injuries were caused, among other things, by ure to do so was due entirely to the concealed position in which the plaintiff lay.

The assignments of error, five in number, all challenge the correctness of portions of the court's charge as follows:

"(1) Now, as to the first of these assignments of negligence-that is, as to the inexperience of the men-it is of course the duty of the defendant to employ men fitted to perform their duties consistently with the general safety of the public. But to make any such assignment of negligence effective, it must not only appear by a fair preponderance of the evidence that the servants of the defendant were actually inexperienced men, but, further, that Carlson's injuries are directly chargeable to that inexperience.

"(2) I, of course, suggest to you that the law expects a high degree of care from one in charge of a powerful engine of this character, to preserve not only its own passengers but other travelers who may be abroad and in the neighborhood of the railroad tracks from injury. One in such a situation-that is, one in the situation of the motorman-is bound to keep strict watch of his road ahead, and to keep his car under control by maintaining only a speed proper for the surrounding conditions. If, in the fair exercise of these precautions, the motorman actually did not see Carlson before striking him, then neither he nor his principal is responsible here for whatever injury was inflicted upon Carlson when the car first struck him.

"(3) Whether that negligence still remained a proximate or efficient cause of his injuries would depend upon the entire situation then and whether he had been so long on the track as to charge the company with knowledge of his presence there.

"(4) Of course his continued presence on the track in a drunken stupor, if he was in a drunken stupor, was an act of continuing negligence; but if his position was one which was or ought to have been obvious to the motorman or ought to have been obvious to the motorman of an approaching car, I think you must find that the negligence of the motorman, assuming that you find him to have been negligent under all these conditions, was the proximate cause of the injury without reference to any conduct of the plaintiff, and in that event the plaintiff must have a verdict.

the defendant's negligence in failing to provide competent and experienced operatives for its car. This was not a good allegation of actionable negligence. Had its charge been well founded, the defendant would not for that cause alone have rendered itself liable to the plaintiff. Whether those concerned in the operation of the car were competent or incompetent, experienced or inexperienced the defendant would not be liable in this action in either event, in the absence of some negligent act or omission on their part. If there was no such act or omission, there would be no liability on the part of the defendant, however inexperienced, incompetent, and unfit for their tasks the defendant's employés If there was such act or may have been. omission contributing to the plaintiff's inju ries, the defendant would be liable, however experienced and ideally competent the negligent actor servant was. The liability of the defendant, if any, must find its basis in negligent conduct on the part of its servant or servants. It cannot rest upon their want of qualification for their task alone. Monroe v. Hartford St. Ry. Co., 76 Conn. 201, 209, 56 Atl. 498.

The instruction given, considered in the abstract, is perhaps not open to criticism, and, if rightly understood and applied, would not be objectionable. As furnishing the rule conditions like those presented by the case at for the guidance of a jury under concrete bar, it is, however, open to the objections, of practical importance, that it was calculated to give the jury the impression that actionable negligence on the part of the defendant might be predicated upon its employment of incompetent and inexperienced servants; that it tended to divert the attention of the Jury from the real issue; that is to say, whether or not the defendant's employés whether or not the defendant's employés were guilty of negligent conduct in the operation of its car, to one of itself immaterial, and impliedly, at least, invited them to find a ground of recovery in that which in and of itself would not create liability; and that it submitted to their consideration as constitut

ing an issue matter which the evidence did not raise to the dignity of one.

"(5) Remembering all the principles of neg: ligence, as I have suggested them to you, and the specific allegations of negligence which refer to this branch of the case by the plaintiff, [2-4] With respect to the latter matter it if you find that the man was injured by losing is to be remembered that the only evidence his remaining foot on this second trip of the upon which a finding of the motorman's and car, I think the question of contributory neg- conductor's inexperience and incapacity

As there must be a new trial, it is unnecessary to inquire whether or not the defendant's third and fifth assignments of error are well made.

could be predicated was that they were spare where he was, was guilty of continuing neghands, who had been in the defendant's em-ligence, yet if his position was one which ploy only a month and been on the South was or ought to have been obvious to the moWindsor run only four or five days. For torman, they must find that the latter's negliaught that appears they may have had long gence, assuming that he was negligent, was experience elsewhere and been fit and compe- the proximate cause of the plaintiff's injury tent in a high degree. Manifestly the jury without reference to any conduct of the latcould not reasonably have found that they ter, and that, in that event, the plaintiff were either inexperienced or incapable upon must have a verdict. This instruction predisuch proof alone. An instruction which left cated liability upon the acquisition by the the door even slightly ajar for the entrance motorman of knowledge, either actual or imof a finding of negligence on the defendant's plied, of the plaintiff's exposed position, and part which did not arise out of the acts of ignored another condition of equal imporits servants was calculated to do the defend- tance, to wit, that the motorman subsequently ant harm. "It is the duty of the court to had the opportunity, by the exercise of reasubmit to the jury no issue foreign to the sonable care, to save the plaintiff from harm. facts in evidence, or in respect to which no Fine v. Conn. Co., 92 Conn. 626, 631, 103 Atl. evidence has been offered." Fine v. Conn. 901. Fine v. Conn. 901. Under the charge the company would, Co., 92 Conn. 626, 630, 103 Atl. 901, 902. in the application of the last clear chance [5] The third and fourth of the criticized doctrine, be liable, notwithstanding the plainpassages were used in connection with the tiff's contributory negligence, if the motorcourt's instructions touching the so-called man failed to stop his car and thus save the last clear chance doctrine invoked by the plaintiff from harm, although the plaintiff plaintiff to avoid the effect of his own negli- was hit the very instant after the motorman gence in placing himself in the dangerous po- became, or ought to have become, aware of sition in which he was when injured. Knowl- the plaintiff's danger. edge actual or imputed, on the part of the defendant or its agents of the plaintiff's exposure where he lay was a vitally important factor in the application of the principles under consideration. Given that, it would be difficult indeed for the defendant to escape liability. In the first of the two passages the court plainly implies that such knowledge might be imputed to the defendant from the mere lapse of time during which he had lain. where he was when injured. When it is remembered that the spot where he wittingly or unwittingly sought a resting place was one quite away from the traveled roadway and in the unlighted country; that his body was RAILROADS more or less concealed by the growing grass in which he lay; that the time was near midnight; that he had been there not more than one-half to three-quarters of an hour; that no car had passed meanwhile; that no servant or agent of the defendant had had occasion during that time to be in that vicinity; and that, as far as appears, no person knew of his whereabouts after he started to walk home-it is clear that conditions justifying the imputation to the defendant of knowledge of the plaintiff's presence in the grass by the side of its tracks were absolutely wanting. Clearly the defendant could not upon the evidence reasonably be charged with knowledge that the plaintiff lay where he did, except as such knowledge was or ought to have been gained by the motorman as his car approached the scene of the accident.

There is error, and a new trial is ordered.
The other Judges concurred.

(94 Conn. 127)

HAMMER v. CONNECTICUT CO. (Supreme Court of Errors of Connecticut. Dec. 22, 1919.)

TOMOBILE
QUATE.

401 (8)-INSTRUCTIONS ON AU

DRIVER'S. NEGLIGENCE

INADE

In an action for injuries in a collision with a trolley car when plaintiff, to avoid another automobile approaching, turned sharply to the left, and such other automobile struck the rear of his and threw it on the railway tracks adjoining the traveled roadway of a highway, instructions as to plaintiff's negligence in colliding with the other automobile through violation of a rule of the road held inadequate and prejudicial.

Appeal from Superior Court, Hartford County; William S. Case, Judge.

Action by Nathan Hammer against the Connecticut Company. From judgment for defendant, plaintiff appeals. New trial order

ed for error.

Action to recover damages for injuries to [6] Passing now to the second of the two the plaintiff's person and to his automobile passages which immediately followed the through a collision with a street railway car first, we find the court saying to the jury of the defendant, which was alleged to have that, although the plaintiff, in remaining been caused by the negligence of its servants,

(108 A.)

brought to the superior court in Hartford | is disclosed by the evidence, and that is this: county and tried to the jury. Verdict and The defendant claims that the evidence shows judgment for the defendant and appeal by either that the plaintiff was traveling north on the plaintiff. Error, and new trial ordered. the west, or to him the left, side of the highway, or that he suddenly turned to his left Jacob Schwolsky and Henry J. Marks, both when Rankin's car approached. Of course, if of Hartford, for appellant. the plaintiff did either of these things, he was Seth W. Baldwin, of New Haven, for ap- violating one of the elementary rules of the Seth W. Baldwin, of New Haven, for ap-road, known to all intelligent users of the highpellee. way and respected by all prudent travelers. If the collision with Rankin was due directly to such conduct of the plaintiff, then its results, the throwing of his own car on to the railroad track, is chargeable to his own negligence."

CURTIS, J. The plaintiff's reasons of appeal relate entirely to the adequacy of certain portions of the charge of the court in dealing with the facts which the parties had offered evidence in support of and claimed to have proved.

The claims of the parties as to the evidence disclose that a paved state highway runs north and south in East Hartford from Glastonbury to Hartford, and that west of the paved traveled roadway the trolley tracks of the defendant railway run parallel to the traveled roadway; that the trolley tracks are not paved for travel, and in general are used exclusively by trolley cars.

The plaintiff's automobile, between the hours of 10 and 11 in the evening, when on said trolley tracks was struck by a trolley car of the defendant.

The plaintiff claimed to have proved that the collision injured his person and his automobile, and that it was caused by the negligence of the defendant's motorman without negligence on his part contributing to cause the collision and injuries.

The plaintiff claimed to have proved that at the time in question he was driving his automobile northerly on the east side of the paved roadway running from Glastonbury to Hartford, and at the same time one Rankin was driving an automobile southerly on the east side of the roadway at a reckless rate of speed, and the plaintiff, in order to avoid a head-on collision, suddenly turned his automobile to the left toward the center of the roadway, and his automobile was then struck by Rankin's automobile and thrown upon the trolley tracks of the defendant.

The defendant claimed to have proved, on the contrary, that Rankin was driving southerly on the west side of the paved roadway, and the plaintiff was driving northerly on the west side of the roadway and collided with Rankin's automobile and ran out to the left onto the trolley tracks.

Under these claims as to the facts proved by the parties, it became necessary for the jury to determine whether or not the plaintiff's automobile was thrown upon the trolley tracks through the plaintiff's negligence.

The court charged the jury as follows, and not otherwise, in regard to these facts claimed to have been proved by the parties:

"Now, there is a contingency also to be considered here, which the defendant insists upon

The charge does not deal directly with the circumstances which the plaintiff claims accompanied the collision.

The plaintiff claimed to have proved that he was on the east side of the paved roadway and was confronted by a head-on collision with Rankin's car running recklessly on the east side of the roadway, and that the plaintiff turned suddenly to the left to avoid a collision.

The jury were left with such guidance only as to this claimed situation as is contained in the portion of the charge given above, where it is stated, in substance, that if the plaintiff suddenly turned to the left when Rankin's automobile approached, he was violating a rule of road and guilty of negli

gence.

If the jury found that the plaintiff was driving his automobile north on the east side of the roadway, and that Rankin was driving an automobile south at a reckless rate of speed on the east side of the roadway, directly toward the plaintiff's automobile, and that the plaintiff, in order to avoid a head-on collision, suddenly turned his automobile to the left, and while the plaintiff was so doing Rankin's automobile struck the rear of the plaintiff's automobile and threw it on the tracks. then the jury might reasonably have found that the plaintiff was free from negligence in turning suddenly to the left to avoid a collision.

We are of the opinion that the charge gave an inadequate and prejudicial direction as to this feature of the case, and that the plaintiff's third claim of error is well taken.

In view of the conflicting claims of the parties as to the circumstances under which the plaintiff's automobile got upon the trolley tracks, the portions of the charge of the court set up in the first, second, fourth, fifth, eighth, and ninth claims of error are correct and adequate directions to the jury in relation to the claimed facts. These claimed errors dealing with directions as to facts are not of general interest and call for no discussion.

The sixth and seventh claimed errors were abandoned in argument.

There is error, and a new trial is ordered. The other Judges concurred.

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