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Ryan v. Town of Bristol.

Again, this request may mean that, while there was relevant evidence upon both of said ultimate facts, some of which was also relevant upon the question of contributory negligence, the court should have pointed out to the jury which was which, and should then have told them that the inference as to contributory negligence could be drawn by them only from such evidence as was relevant upon that point.

If this is its meaning, the court did in fact comply with the last part of it, and did not err in not complying with the first part. It told the jury that the facts and circumstances from which they might infer the existence of due care must be such as would fairly and reasonably warrant the inference; and this was only saying to the jury, in a way they could understand, that the evidence must be relevant.

The first part in effect asked the court to separate the evidence relevant upon the question of contributory negligence from that which was not, and tell the jury which was so relevant and which was not. Such a thing was practically impossible and it was not incumbent upon the court to attempt it. The charge as given upon the point in question embodied in substance or in terms all that was legal in these requests ; it was a correct statement of the law as adapted to the facts in the case ; and it was fairly sufficient for the guidance of the jury. The duty of the court was thus fully performed. City of Hartford v. Champion, 58 Conn., 276. This disposes of these three assignments of error.

In the eighth and ninth reasons of appeal, which may for convenience be considered together, the defendant complains of the charge as given. The court in substance told the jury that, although there was no direct proof of the fact that Ryan fell from the bridge and was killed at the point where the railing was defective and by reason of that defect, these facts might be proved from other facts and circumstances established by the evidence; and that although there were no eye-witnesses as to the manner in which Ryan crossed the bridge, the way in which he did fall off, and how he acted, the fact that he exercised due care might be inferred from

Ryan v. Town of Bristol.

us.

circumstantial evidence. The jury were also told that these facts and circumstances must be established by a fair preponderance of testimony, and must be of such a nature as to fairly and reasonably lead to, warrant and support both conclusions. As already stated the evidence in the case is not before

If the circumstantial evidence in the case was relevant upon both of these points, and it was so relevant to some extent for aught that we can see, then the court instructed the jury correctly. The real grievance of which the defendant complains as it is set forth in the brief and was urged before us in the argument, is not perhaps clearly and distinctly stated in any one of the reasons of appeal, taken singly and by itself, but the defendant claims it arises out of their combined effect. That grievance in brief is this :—that there was no competent evidence before the jury upon the question of contributory negligence, and that the court ought to have so told the jury and in effect directed a verdict for the defendant on this point. By competent evidence here we understand the defendant to mean relevant evidence.

This claim proceeds on the assumption that there was no relevant evidence before the jury on the question of contributory negligence, and of course that this appears from the record. But the assumption is without foundation. The record does show, as we have seen, that there was some evidence before the jury relevant upon the question of contributory negligence; the evidence so shown we think made it the duty of the court to submit it to the jury for what it was worth on that point. And from the record we have no warrant for saying that there was no other relevant evidence on this point than what the record discloses. How then can we on this record say that the court erred in refusing to charge as claimed ?

The truth is, the defendant seems to regard this appeal as if it were a motion for a new trial for a verdict against evidence, where, with all the evidence before us, we could say from the record that there was no relevant evidence upon the question of contributory negligence. It says in one part

Ryan v. Town of Bristol.

of its brief that the court " tells the jury in so many words that they may find from the mere circumstances that Ryan was going towards the bridge on the south side-walk about twelve o'clock, and was not again seen until next morning in the bed of the river, that he was in the exercise of due care." All through the brief the claim is made that there was no evidence of any kind relevant upon the fact of contributory negligence except the mere fact that Ryan was last seen on this highway going towards the bridge, and this they claim was not relevant. It is quite a sufficient answer to these claims to say that they are without foundation, so far as we can see from the record.

Furthermore, certain parts of the evidence in this case which the defendant claims to be clearly irrelevant are quite similar to parts of the evidence which this court held not only to be relevant but sufficient to sustain a verdict in the case of Bronson v. Town of Southbury, 37 Conn., 199.

Most, if not all, of the cases cited on the defendant's brief and pressed upon our attention are cases where the evidence appears upon the record and the question of its relevancy or sufficiency is properly before the court. We have no occasion at present to review or to criticise them. It is enough for our present purpose to say that the questions discussed in those cases are not before us on this appeal. The court did not err in its charge, nor, so far as it refused to charge the requests made, in so refusing to charge.

The only remaining question to be considered is that arising upon the admission of certain evidence. During the trial the plaintiff offered witnesses who were familiar with the place in question. After describing the condition of the railing and the hole in the walk, and the bridge and its surroundings, they were asked the following question :-“ With that rail down and that place in the condition you have described, I ask you whether or not the place was bad and dangerous ?” Objection to the form of the question was waived by the defendant, but it insisted that the witnesses should only be permitted to state the facts, to describe the place and not to

Ryan v Town of Bristol.

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give their opinion. The court permitted the witnesses to answer the question and the defendant excepted.

The defendant in its brief says that “there is no indication that there were any latent defects requiring the giving an opinion as asked of the witnesses. * * * It was clearly within the power of the plaintiff to fully and clearly describe the situation." We cannot see from the record that this is

On the contrary it is perhaps a legitimate inference from the record that the witnesses could not fully and clearly describe the situation to the jury. They had necessarily to describe the highway at this point; the hole in the side-walk, its size, appearance and location; its proximity to the broken railing; the condition and appearance of the broken railing; the bridge and its surroundings; and other matters of a similar nature. It would seem as if a separate and detailed statement of these matters would not put them as a connected whole before the jury precisely as they appeared to the witnesses. As all objections to the form and terms of the question were expressly waived, we must regard it as one calling for the opinion of the witnesses as to whether the matters described rendered the highway as this point reasonably safe or not. “The elements that enter into the question of reasonable safety are often numerous and difficult to describe; and for this reason it has long been the practice in this state to admit even the opinions of nonexperts, founded on their own personal knowledge, and in connection with facts stated by them, upon questions " whether a road is or is not in repair, or whether a bridge is sound and safe, etc.” Taylor v. Town of Monroe, 43 Conn., 45. The exception to the general rule in such cases is grounded on necessity. Sydleman v. Beckwith, 43 Conn., 12; Graham v. Pennsylvania Co., 21 Atlantic Rep., 151. “The facts are sometimes incapable of being presented with their proper force and significancy to any but the observer himself. * * * Under these circumstances, the opinions of witnesses must of necessity be received." Clifford v. Richardson, 18 Vermont, 620.

Whatever the decisions may be elsewhere, we think that

Bassett v. Shares.

the ruling of the court below upon this question was, under the circumstances, in accordance with the principles heretofore laid down by this court. Dunham's Appeal from Probate, 27 Conn., 197; Clinton v. Howard, 42 id., 294; Sydleman v. Beckwith, 43 id., 9; Qninn v. N. York, N. Hav. $ Hartford, R. R. Co., 56 id., 44.

There is no error apparent upon the record.

In this opinion the other judges concurred.

63 39 63 502

MUNSON A. BASSETT vs. JOHN SHARES.

39 68 130 63 39 69 286 63 39

172

New Haven & Fairfield Cos., Jan. T., 1893. ANDREWS, C. J., CARPEN

TER, TORRANCE, FENN and PRENTICE, Js.

Under the practice act, which allows amendments of material variances

and the disregard of immaterial ones, all that the old system of pleading sought to accomplish by the use of different counts for the same cause of action is now accomplished more effectually and at less ex

pense. But the use of such counts may be important in some cases, and the act does'

not forbid it, either expressly or by fair implication. A motion that certain of such counts should be stricken out, or that the

defendant should elect upon which he would go to trial, would be ad

dressed largely to the discretion of the court. It is a general rule that a party charged with negligent conduct will not be

allowed to show that such conduct was common or customary among those engaged in an occupation similar to his own, or among those

placed in like circumstances and owing the same duties. A witness testified that he placed a seat in a wagon“ in a manner that he

thought secure.' Held inadmissible, because a statement of a mere opinion, without the facts.

[Argued January 19th-decided April 7th, 1893. ]

ACTION for an injury to the plaintiff's horse through the negligence of the defendant; brought to the Court of Common Pleas in New Haven County, and tried to the jury before Studley, J. Verdict for the plaintiff and appeal by the defendant for errors in the rulings and charge of the court. The case is fully stated in the opinion.

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