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White v. Town of Portland.

lants objected to this latter testimony as being a statement of a deceased party. The objection was overruled. Fixing a price on the land by Mrs. White with a view to a sale was in the nature of a declaration as to its value; and being inconsistent with the claim now made, the declaration was admissible.

The appellants returned to the assessors, in the usual form, a list of their taxable property, in which the houses and lands were entered separately, and in that form the assessments were made. In the Superior Court the claim was made that two acres of land contiguous to each dwelling house, making in all twelve acres, should be taken from the land assessed and the list reduced accordingly. This claim is based upon the theory that two acres of land was necessarily included in the valuation of each dwelling house, and was also assessed as land, making double taxation. But the court found that there was no double taxation, that each house was valued apart from the land, and all the land assessed but once, and then as land, and overruled the claim.

Perhaps a sufficient answer to this is that the appellants make no such claim in their complaint. Neither does it appear that any such claim was made before the board of relief. Whether a party may appeal in these cases, and then ask the Superior Court to grant relief not claimed before the board of relief, is a question we need not determine ; for it is evident that the appellants have not been wronged. The finding is explicit to that effect.

One or two points of ninor importance are made in the record and were discussed, but it does not seem to us that they require separate consideration. It is believed that the views already expressed are a sufficient answer. We will only add that we see nothing in them that will entitle the appellants to a new trial.

There is no error in the judgment appealed from.

In this' opinion the other judges concurred.

Ryan v. Town of Bristol.

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ROSE A. RYAN, ADMINISTRATRIX, vs. THE TOWN OF

BRISTOL.

Hartford Dist., Jan. T., 1893. ANDREWS, C. J., CARPENTER, TOR

RANCE and FENN, Js.
The plaintiff's intestate, in crossing a bridge on foot about midnight, feli

over a defective railing into the river, where his body was found the
next morning. There were no eye-witnesses of the accident. Held, in
an action against the town, that the plaintiff was bound to show that

the deceased was in the exercise of ordinary care. But that this need not be shown by direct evidence, but might be inferred

by the jury from the circumstances. The jury having rendered a verdict for the plaintiff, the town, on an appeal

to this court, claimed that there was no evidence whatever upon the point of the decedent's care or negligence, and that in the absence of all evidence the jury should have been instructed that they could not find that the decedent had used ordinary care. The case was appealed on the ground of error in the charge of the court that the jury might draw the inference of care or negligence from all the facts and circumstances. Held that, as the appeal did not bring up the whole evidence, the court could not know from the record that there were not circum

stances shown that warranted the jury in their finding. The opinions of non-expert witnesses are admissible under our practice as

to the defective and dangerous condition of a highway or bridge, and they are not limited to a mere statement of the facts upon which their opinions are formed.

[Argued November 20, 1892–decided March 6th, 1893.]

ACTION to recover for the death of the plaintiff's intestate through a defect of a bridge of the defendant town; brought to the Superior Court in Hartford County, and tried to the jury, on a general denial, before F. B. Hall, J. Verdict for the plaintiff for $5,000 damages and appeal by the defendant for error in the rulings and charge of the court.

The case is fully stated in the opinion.

C. E. Perkins and J. J. Jennings, for the appellant.

Late on the night in question the decedent, William Ryan, who it was testified had been drinking, started towards the bridge in question. That is one point in the history. The

Ryan v. Town of Bristol.

next morning he is found dead in the river. That is the next point in the history. Between these points there is a gap. No one knows what took place nor how Ryan was killed. This is a sufficient statement of the facts upon which the plaintiff claims to recover, notwithstanding the stringent rule of law requiring her to prove the allegations of the complaint affirmatively by a preponderance of evidence, to wit: (1) That the highway was defective ; (2) That Ryan was killed by reason of this defect; (3) That he was in the exercise of due care at the time. The defendant claims not only that the law is not so that the plaintiff can recover on such evidence upon such facts, but that such a practice would be pernicious in the extreme, placing corporations and individuals alike at the mercy of accident and malice, permitting guesses to usurp the province of proof, introducing inextricable confusion into the administration of law, and placing a premium upon drunkenness and suicide. A reference to the finding and the charge will show that this statement is not exaggerated. It is found that it was admitted that "

no person saw Ryan fall or saw him on the bridge on the night in question.” And the judge says in his charge : “We have before us no direct evidence of how Ryan came to his death. He was dead, it was conceded, when he was found in the morning. He was last seen about twelve o'clock, and we have in court no eye-witness of the manner in which his death was caused ; and indeed, I think the evidence tends to show that there was no eye-witness to his fall, if it was a fall.” Under such a state of facts the defendant strenuously claims that the law was correctly stated in its requests to charge. The following facts should be kept in mind in the examination of the question : No one knows and there is no means of knowing when Ryan died. No one knows and there is no means of knowing how he died. No one knows and there is no means of knowing why he died. No one knows and there is no means of knowing whether lie used reasonable care to avoid danger. We start into the investigation of this case with all these points granted. The court says they are admitted. And yet, without knowing

Ryan o. Town of Bristol.

and without the means of knowing any of these things, the court tells the jury they may find that the negligence of the town was the cause of Ryan's death, and that he was in the exercise of due care at the time he met his death. In this we contend that the court clearly erred, and we are amply sustained by the authorities. Gahagan v. Boston f Lowell R. R. Co., 1 Allen, 189; Smith v. First Nat. Bank, 99 Mass., 612; Murphy v. Deane, 101 id., 455; Mayo v. Boston & Maine R. R. Co., 104 id., 140; Crafts v. City of Boston, 109 id., 521 ; Hinckley v. Cape Cod R. R. Co., 120 id., 257; Mosher v. Inhab. of Smithfield, 84 Maine, 334; Wendell v. N. York Central R. R. Co., 91 N. York, 420; Bond v. Smith, 113 id., 378; Borden v. Del., Lackawanna f Western R. R. Co., 131 id., 671; Hooper v. Johnstown etc., Horse R. R. Co., 59 Hun, 121 ; Ford v. Anderson, 139 Penn. St., 261; Balt. f Ohio R. R. Co. v. The State, 71 Md., 590; Fox v. Town of Glastonbury, 29 Conn., 204, 209; Nolan v. N. York, N. Haven & Hartford R. R. Co., id., 476; Farrell v. Waterbury Horse R. R. Co., 60 id., 239; Shearman & Redfield on Negligence,59.

A. F. Eggleston, for the appellee.

TORRANCE, J. This is an action to recover damages for the death of William Ryan, caused by a defective highway. The defect claimed to exist was an insufficient railing on the side of the highway forming the approach to a bridge over the Pequabuck river, and a hole in the walk or foot path near the defective railing. The jury rendered a verdict for the plaintiff, and the defendant brings this appeal for certain claimed errors in the admission of testimony and in the charge of the court.

In some of its aspects the case is a peculiar one. Ryan was last seen alive about midnight of August 30th, 1890. He was then on the south side of the river on the highway in question, walking towards the bridge, and in the direction of his home. The next morning his dead body was found down the embankment on the north side of the river, not far

Ryan v. Town of Bristol.

from the abutment of the bridge and near the point where it was claimed the highway was defective.

There was no direct evidence showing the acts or conduct of Ryan after midnight, nor the certain hour, cause or manner of his death. All these things were largely matters of inference from circumstantial evidence, no eye-witness testifying to any of them. The contest in the court below, so far as we are here concerned with it, was mainly upon two questions, namely, whether Ryan's death was caused at all by the defective highway, and, if so, whether he was in the exercise of due care at the time.

According to the law of this state, and under the pleadings, it was clearly incumbent upon the plaintiff to prove both of these essential facts by a fair preponderance of evidence. To prove both she relied chiefly if not entirely upon circumstantial evidence. The record shows in a general way the nature and character of that evidence, but all the facts and circumstances comprised in it are not of course before us. From the allusions made to it in the charge of the court, in stating the claims of the parties upon the evidence, we can see that much of it related to the facts and circumstances seen and observed when the body was found next morning. It related to the appearance of the broken railing and its condition ; to the size and location of the hole in the walk near by ; to the appearance of the bank and the bushes and branches thereon as disturbed, displaced or broken by Ryan's fall; to the proximity of the body to the railing and abutment; to the posture and position of the body and the marks and bruises thereon; and to other matters of a similar nature.

It was under this state of things that the defendant made the requests to charge set forth in its reasons of appeal. These reasons contain ten assignments of error. The first relates to the admission of evidence and will be considered later on. The last one has no foundation in the record and was abandoned upon the argument. Of the remaining eight, two of them, the eighth and ninth, relate to certain parts of

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