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might give to a witness; and the few, if any, not of this nature, are immaterial, and would not affect the finding if added to or expunged therefrom. Consequently the finding as made must stand.

The only ruling upon evidence, of which the defendant complains, was correct. The defendant claimed that as Meyer, before he was struck, had ridden for some distance on the footboard next to the poles, he was chargeable with knowledge of the nearness to the track of the pole that struck him. To meet this claim, it was proper to show that the poles passed prior to the accident were placed at a safe distance from the track, and so would have led Meyer to believe, if he observed them at all, that all were so placed.

The court has found, in substance, the following facts: Meyer became a passenger on a trolley car of the defendant going from Stillman's Corners towards Meriden. From the time he boarded the car until he was thrown off, he rode upon the right-hand, or south, running board of the car, near the rear platform. The car, when he got on, was full; every seat and the rear platform being occupied. Passengers were riding on both running boards, and three or four others besides Meyer were riding on the south running board. The car was a double-truck open car, for summer traffic, new and in good condition. There was room for persons to stand between the seats, and for a few to sit on the car floor between the seats, with feet on the running board, but it did not appear that it was practicable to do so while Meyer was on the car. Meyer voluntarily took his position upon the running board, and made no request for a seat; nor did he make any attempt to find a seat inside the car, or between the seats, or upon the platforms. The conductor saw Meyer get on, but did not know that he was riding on the running board until he collected his fare. After doing so, the conductor passed around Meyer, and stood on the footboard, collecting fares from passengers on the rear platform. While so doing "he felt some portion of Meyer's arm or hand strike him, and Meyer was hurled from the car." The car was then going down grade, with power off, under control of the brake, at the rate of 15 miles an hour. It was stopped as soon as possiblewithin about 300 feet from the point where Meyer left the car. The conductor and others went back, and found Meyer lying on the ground, about 35 feet from the pole that struck him. He was alive, but unconscious, and died within a few minutes after he was found. The trolley pole that caused the accident is situated on the south side of the track, at the outside of a curve, and leans towards the track. Its distance from the track, and from a car standing on the track near it, leaving out small fractions of an inch, is as follows: From the inside gauge line of the south rail to the pole the distance is 3 feet 6 inches; from the body of the car,

at the level of the floor, to the pole, the distance is 25 inches, at the level of the seats it is 22 inches, while at the height of Meyer's head above the running board it is 211⁄2 inches. The running board is 81⁄2 inches wide, and, from the manner in which it is hung, the distance between its outside edge and the pole is 141⁄2 inches. Nothing prevented the defendant from placing this pole at a greater distance from the track. A car traveling rapidly to the east, as was the one in question, when it strikes the curve aforesaid, "gives a jolt or lurch, and has a tendency to throw people upon the car outward." Just as the rear of the car, at the time in question, was passing this pole, the forward wheels struck the curve, "there was a jolt, and Meyer's head was thrown back and struck said pole, and he was hurled from the car in consequence." It did not appear that Meyer had any knowledge of the nearness of the pole to the track.

These are the controlling facts in the case, and from them the court drew the conclusion that "the defendant was negligent in permitting its passengers to ride upon said running board while running its car at such rate of speed along the track at the point in question, with the pole situated as aforesaid." The facts found amply justified this conclusion, whether it be regarded as one of fact or of law. Upon the facts found, the court ruled that the defendant "had failed to disprove that the intestate's injuries and death were caused by the negligence alleged in the complaint, or to prove that the plaintiff's intestate was guilty of contributory negligence, as alleged in the notice" filed before the hearing in damages. There is nothing in the record that shows or tends to show that the court erred in these rulings.

The defendant made some 10 claims of law in the court below, relating to the question of negligence on the part of the defendant, and contributory negligence on the part of Meyer. Most of these claims were based upon states of fact negatived by the finding, and were properly overruled; and, so far as any of said claims were not so based, there is nothing in the record to show that the court overruled them.

The defendant also made the following claim below: "That, upon the facts proven at said trial, no judgment can be rendered against the defendant for greater than nominal damages." This, standing alone, is perhaps somewhat ambiguous. It may mean that, upon the facts proven, the defendant was not guilty of negligence, or that Meyer was guilty of contributory negligence, and so the plaintiff was entitled to no more than nominal damages; or it may mean, as the defendant claims, that there was not sufficient evidence bearing upon the quantum of damages to warrant the court in awarding the full statutory amount. We are of opinion that this last is the meaning that

should be given to this claim. The finding upon this point is as follows: "Upon the trial the plaintiff, in opening his case, offered no evidence of damages, further than the fact, formally and expressly admitted by the defendant, that he (Meyer) was dead, and that his age was thirty-seven years; and there was no evidence as to damages, except such admission and the facts hereinbefore set forth." This part of the finding occurs near the end, so that "the facts hereinbefore set forth" include all the facts in relation to Meyer stated theretofore in the finding. We agree with the defendant that in cases of this kind there should be more evidence as to the quantum of damage than the mere fact that the injured party died, and at such an age. Such evidence, standing alone, would rarely, perhaps, warrant a court in awarding the full statutory amount of damages. But the court below had before it, bearing upon the quantum of damage, something more than the mere facts of the age and death of Meyer. There was evidence tending to show that Meyer was a man of average size, and in good condition physically and mentally; and there was evidence tending to show that he lived for some minutes after the accident, and that he suffered some pain. This being so, we cannot say that the court erred in awarding the full statutory amount of damages, especially in a case like the present, where, from the record, it appears that there was little or no contest upon this point as to the quantum of damages, and that the attention of the trial court was not called to this matter, save by the somewhat ambiguous claim of law hereinbefore stated.

There is no error. The other Judges concurred.

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1. Under Rules of Court, p. 109, § 62, providing that costs will be taxed, in the absence of special order, in favor of the prevailing party on appeal, an appellant who sustains the appeal on any grounds is the prevailing party, notwithstanding his failure to sustain it on all.

2. Gen. St. 1902, § 797, provides that the expense of printing evidence certified up "shall be paid and taxed" as provided in section 796, which is that such expense "shall be paid" by the party requesting the evidence to be certified, and "may be taxed," to an amount not exceeding $50, in favor of the prevailing party. Rules of Court, § 62, provides that, when error is found, costs will be taxed, in the absence of a special order, in favor of the prevailing party. Held that, where appellant prevails, costs of printing the evidence will be taxed to the full extent allowed by law, unless there was no reasonable ground for printing the whole evidence.

On motion by appellee for a special order that no costs be taxed for expense of printing the evidence on reversal of judgment below. Motion denied.

For opinion reversing judgment below, see 53 Atl. 780.

PER CURIAM. The rules of court (page 109, § 62) provide that when "error" is found costs will be taxed, in the absence of special order to the contrary, in favor of the prevailing party. In this case the appellants were the prevailing party. It was enough to make them such that they prevailed on any of their reasons of appeal, notwithstanding their failure to sustain all of them.

Gen. St. 1902, § 797, provides that the expense of printing the evidence, when that is certified up, "shall be paid and taxed as provided in section 796." The latter section provides that such expense "shall be paid" by the party requesting that the evidence be so certified up, and "may be taxed," to an amount not exceeding $50, in favor of the prevailing party. Construing these sections together, the words quoted from the former have the same meaning as if they were "shall be paid and may be taxed." Under our rules (section 62) the costs which, unless otherwise ordered, will be taxed in favor of the prevailing party, are costs to the full extent allowable by law. Such an order as is now asked for can only be proper when there was no reasonable ground for asking that the whole evidence be printed. In the case at bar we think there was reasonable ground, and therefore the motion is denied.

(75 Conn. 515)

TOWN OF FAIRFIELD v. TOWN OF
NEWTOWN.

(Supreme Court of Errors of Connecticut. March 4, 1903.)

SUPPORT OF PAUPER-KNOWLEDGE OF RESIDENCE PRESUMPTION FAILURE TO GIVE NOTICE EFFECT QUESTION DECIDED BE

LOW-REVIEW.

1. Plaintiff town sued the town of E. for the support of a pauper. In such action, facts were found, which, by a proper application of the law, established the pauper's residence in defendant town. Held, that plaintiff is presumed to have known the law, and hence defendant is not liable for the pauper's support after plaintiff's knowledge of such facts; no notice having been served as required by Gen. St. 1902, § 2485.

2. Under Gen. St. 1902, § 2485, providing that, where the selectmen of a town have knowledge of the town where a pauper belongs, the latter shall not be liable for any expense for the time during which there was a neglect to give notice, the failure of a town to give notice of a pauper's condition after it knows to what town he belongs does not relieve such latter town of liability for support furnished prior to such knowledge.

3. Though, in an action against a town for the support of a pauper, the claim that defendant was liable for support furnished before plaintiff's neglect to give notice to defendant of such pauper's condition was not expressly made by plaintiff, as such question was necessarily decided in sustaining defendant's claim that there was no liability whatever, it will be considered on appeal.

Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.

Action by the town of Fairfield against the town of Newtown to recover for supplies fur

nished a pauper. Judgment for defendant, and plaintiff appeals. Reversed.

Elmore S. Banks, for appellant. Frank M. Canfield, for appellee.

HALL, J. The selectmen of the plaintiff town furnished support for one Stilson, a pauper over 14 years of age, belonging to the defendant town, from December 22, 1899, continuously until April 10, 1901, at an expense of $3 a week. From information received from said Stilson, and from the selectmen of Newtown and others, the selectmen of Fairfield believed that Stilson belonged to the town of Easton; and in April, 1900, a suit was instituted by the plaintiff against the town of Easton, in which the plaintiff claimed that Stilson belonged to that town, and that it was liable for the support so furnished him by the plaintiff. The selectmen of Fairfield did not obtain knowledge of the facts necessary to determine the liability of the defendant until March 29, 1901, when the court to which said action was brought made a finding of all the facts bearing upon the question of the settlement of said Stilson in the town of Easton. Upon the facts thus found, the selectmen of Fairfield still believed that by law the town of Easton, and not the defendant, was liable for the support of Stilson, until they learned on the 1st of June, 1901, that this court, upon the reservation of said case against the town of Easton, had advised otherwise. 49 Atl. 200. On June 3, 1901, the selectmen of Fairfield gave due notice in writing to the town of Newtown of the condition of said Stilson, that he had been furnished support by the town of Fairfield, and that the town of Newtown was liable therefor, and thereafter brought the present action.

It is not claimed that prior to March 29, 1901, the plaintiff's selectmen had such knowledge of the town where Stilson belonged as made it their duty to give to the defendant notice as required by section 2485 of the General Statutes of 1902, to enable the plaintiff to recover of the defendant, under section 2487, the expense incurred for support furnished to Stilson before that date. On that day, however, they learned, from the finding of the court, that prior to July, 1895, the domicile and residence of Stilson had been in Newtown, and ascertained all the facts upon which it was claimed by the plaintiff, and also by the town of Newtown, that after that date he had gained a settlement in Easton. Fairfield v. Easton, 73 Conn. 735, 49 Atl. 200. They are conclusively presumed to have known the law, which, applied to such ascertained facts, showed that Stilson had not acquired a settlement in Easton, and that he therefore still belonged to the town of Newtown. Stow v. Converse, 3 Conn. 325-347, 8 Am. Dec. 189; Bestor v. Hickey, 71 Conn. 181, 188, 41 Atl. 555. It became their duty, therefore, to give notice to the defendant within five days after March 29th,

in order to enable them to hold the defendant liable for such support as they might thereafter furnish to Stilson. That they still believed that Stilson had gained a settlement in Easton, after learning the facts, furnished no excuse for their delay in giving notice to the defendant until that question had been decided by this court. They delayed giving such notice at their own risk. If, after a knowledge of the facts, there existed a doubt as to which of the two towns was liable for support so furnished, the safe course would have been to notify both.

But the failure of the plaintiff to give the required notice until June 3d did not relieve the defendant from liability for the support furnished Stilson before the plaintiff had knowledge that he belonged to Newtown. The statute imposed no duty upon the plaintiff's selectmen to give such notice before they became chargeable with such knowledge. Section 2476 provides that paupers shall be supported at the expense of the town where they belong; and section 2485, that the selectmen of every town in which a pauper belonging to another town is chargeable shall give notice of his condition to the town in which such pauper belongs, within five days after they shall know to what town he belongs, and that "when the selectmen have knowledge of the town where such pauper belongs such town shall not be liable for any expense, for the time during which there was a neglect to give such notice." Section 2487 provides that "every town incurring any necessary expense pursuant to § 2485 * for a pauper belonging to another town, may recover it from such town." As there was no neglect to give notice until the expiration of five days after March 29th, the defendant is only relieved from liability for the expense of the support of Stilson after that time.

The claim that the defendant was liable, under the statute, for support furnished before there was any neglect by the plaintiff to give the required notice, apparently was not expressly made by plaintiff's counsel in the argument in the trial court; but the question was necessarily decided by that court, in sustaining the claim of defendant's counsel that there was no liability upon the part of the defendant, and in rendering judgment in favor of the defendant. Atwood v. Walton, 57 Conn. 514-524, 18 Atl. 322. Upon the assumption that the plaintiff was chargeable with knowledge on the 29th of March that Stilson belonged to the defendant town, the plaintiff, in his reasons of appeal, only claims that the trial court should have rendered judgment in its favor for support furnished prior to that date. The trial court erred in not rendering such judgment.

There is error, and the case is remanded for the entry of a judgment for the plaintiff for the expense incurred in the support of Stilson from December 22, 1899, until March 29, 1901, at the rate of $3 a week. The other Judges concurred.

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1. Intestate, a boy of 16, was killed by an electric shock from a wire strung across a highway bridge by defendant. He was on one of the trusses of the bridge at the time, preparing to dive, and caught the wire to prevent himself from falling. Boys were in the habit of diving from and swimming around the bridge, which fact was known to the selectmen of the town and to defendant. Defendant's wires were not insulated, so as to prevent injury from personal. contact, nor was there any notice posted that they were dangerous to handle, nor was it shown that the selectmen had ever approved of the construction of the wires. Held, a finding that defendant was negligent was justified by the evidence.

2. Intestate knew that a boy had received a shock from the wires the year before, and had reason to know that the current was likely to be turned on at the time he met his death, but it was not shown that he knew that there was danger in touching the wire. Held, that a finding that defendant had failed to show contributory negligence was justified.

3. A private corporation, which maintains for its own use electric wires over a public bridge, is bound to use a high degree of care to prevent injury to persons using the bridge, taking into consideration all the uses to which it is put.

4. A private corporation, which maintains for its own use uninsulated electric wires over a pub iic bridge, cannot object that a person injured from coming in contact with such wires was not rightfully on the bridge.

5. A default in a tort action throws on the defendant the burden of proving on the hearing in damages that the person injured was guilty of contributory negligence.

6. An assessment of damages at $5,000, in an action for wrongful death, where the evidence showed that deceased was a bright active boy, 16 years of age, who for nearly 3 years had been a general clerk in a grocery store, is not excessive, though this is by statute the extreme limit of recovery in such an action.

7. Judicial notice can be taken of the probability of expectation of life disclosed by the mortality tables.

8. In an action for wrongful death, resulting from contact with electric wires hung by defendant on a highway bridge, it was error to exclude testimony tending to show that the pole on which the wires were hung was put in a proper place in being bolted to the bridge, rather than out in the stream.

9. Under Gen. St. 1902, § 797, providing that the superior court on appeal shall consider the whole record (in which is included the evidence certified) in considering the findings and rulings of the trial court, where the record in an action for wrongful death resulting from contact with an electric wire strung by defendant on a highway bridge shows that the court improperly excluded evidence tending to show that the wire was strung in a proper place, but immediately afterwards permitted the witness to testify that on the day of the injury the line was in all respects properly constructed, the error was harmless.

10. In an action for wrongful death from contact with an electric wire strung along the truss of a bridge, evidence as to what the cost of elevat

7. See Evidence, vol. 20, Cent. Dig. § 17.

ing the wire above the truss of the bridge would have been was properly admitted.

11. In an action for wrongful death from contact with an electric wire strung over a bridge, testimony by an expert, who had inspected the line the year before, describing the line as it then stood, as a preliminary to showing by him that it was properly constructed as it then stood, was properly excluded.

Appeal from Superior Court, New Haven County; John M. Thayer, Judge.

Action for wrongful death by Ludwig Nelson, as administrator of John A. Nelson, deceased, against the Branford Lighting & Water Company. From a judgment for plaintiff on hearing in damages to the court, defendant appeals. Affirmed.

Seymour C. Loomis and Earnest C. Simpson, for appellant. Charles S. Hamilton, for appellee.

BALDWIN, J. In 1887 the town of Branford built a highway bridge over the Branford river, with a draw. It was a truss bridge, with a railing on each side. On the westerly side of it, outside the railing, was a platform, with steps leading down to a small landing for boats, which was eight feet below the roadway. Ever since the construction of this bridge the boys and young men in the neighborhood had been, with the knowledge of the selectmen, in the custom of bathing from it in summer, and, while so doing, of running and exercising themselves upon and jumping and diving from all parts of the bridge and draw; the smaller boys confining themselves to the landing, platform, and floor, but the larger ones diving and jumping from the railings and trusses. In 1896 the defendant constructed a line of wires for electric lighting purposes along the highway, and bolted one of its poles to the piles of the bridge at each side of the draw. An iron pipe was attached to each pole, through which the wires were carried down to the bottom of the river and across the bottom. In the summer of 1900, in lieu of this arrangement of the wires, overhead wires were strung between these poles, which could be detached and removed whenever a vessel passed through the draw. These ran over 14 feet above the floor of the bridge, and that nearest the west edge of it was about 5 feet 5 inches above the peak of the truss and 17 inches west of its west face. The selectmen inspected the defendant's line in 1896, and approved it. They were not consulted as to the change of construction made in 1900, and it did not appear that they approved it. The use of the bridge for bathing purposes continued thereafter as before, with their knowledge and that of the defendant. The wires above the draw were insulated so as to protect them against the weather, but not so as to make personal contact with them safe. The current was turned on every day towards dark, and then they were dangerous to handle. No notice of such danger was given by the defendant, al

though it knew that the bridge had so much iron upon it as to be a good conductor of electricity, and that the current was liable to diversion if one standing on the bridge should touch the wire overhead, particularly if he were wet at the time. In July, 1901, at about a quarter before 7 in the evening, the plaintiff's intestate, a boy of 16, who had been in the water, while bathing from the bridge, walked up the west truss, clothed only in bathing trunks, to the peak, which was over 17 feet above the river, and asked some boys below if they thought he would touch bottom if he dove from there. then faced about to the west, and-whether voluntarily or instinctively to prevent a fall did not appear-caught hold of the nearest of the overhead wires, and was killed almost instantaneously by an electric shock. He knew that the wire was an electric light wire, and that a boy had received a shock a year before, while climbing the nearest of the poles for the purpose of diving, but it did not appear that he knew that the wires were dangerous to handle.

He

The superior court has found that the defendant failed to prove that it was not negligent in running the overhead wire as it did, with no greater precautions against danger to bathers, and failed also to prove that the boy was guilty of contributory negligence. There is nothing in the facts specially found inconsistent with these conclusions. The defendant was bound to a very high degree of care in the use for its own purposes of a highway bridge. McAdam v. Central Ry. & E. Co., 67 Conn. 445, 447, 35 Atl. 341. In determining what precautions against danger to human life were reasonably necessary, it was bound to consider all the uses to which the bridge was customarily put. It is found that it was convenient to the defendant to have the wires no higher above the truss; but convenience in such a matter is a subordinate consideration. The bridge, as part of a public highway, was open to general public use. Under the law of this state the purposes of a highway are not regarded as wholly restricted to serving the right of passage. He who is standing on one as a mere sightseer, to gratify his curiosity, is rightfully there. Bunnell V. Berlin Iron Bridge Co., 66 Conn. 24, 36, 33 Atl. 533. The custom of boys to dive from the bridge was known to the defendant. The selectmen, who represented the town which owned it, had known of this practice for 14 years. So far as appears, they had expressed no disapproval. Silence for so long a time might naturally be taken as importing acquiescence. It was for them, and not for the defendant, to determine how the town property should be used. As far as the defendant is concerned, the plaintiff's intestate was rightfully on the truss, and the defendant owed him the duty of not unnecessarily exposing him to dangers to life which reasonable care on its part could avoid. It could have insu

lated the wires more effectively. It could have strung them out of the reach of one standing on any part of the bridge. It could have carried them across the river, as it originally did, in a pipe laid on the bottom of the river. It could have put up a notice of danger. The trial court had the right to take into view what the company had not done as well as what it had done in determining whether it had fulfilled its burden, under the default, of disproving the charge of negligence.

The default also threw upon it the burden of proving its claim that the plaintiff's intestate was not himself in the exercise of duc care. There were circumstances indicating that he was lacking in this. There was no proof of any justifying cause for his grasping the wire, and it was in proof that he grasped it at a time of day when he had reason to apprehend that the current might have been turned on. But, while he knew the purpose which the wire served, it was not shown that he knew that there was danger in touching it. It was encased in a preparation of cotton fibre and paint. Had the casing been rubber or gutta percha, the danger from contact with it would have been slight. A boy of his age is not necessarily chargeable with knowledge of the different modes of insulation and their comparative effect. That he had knowledge that the casing contained a wire, and that an electric light wire, did not, as matter of law or of logical necessity, show that he was not in the exercise of due care, under the circumstances of his situation. It was to be and was considered by the trial court, but it was not absolutely controlling.

The only proof on the point of damages was that the intestate was a bright, àctive, intelligent boy of 16, 5 feet 2 inches high. who for nearly 3 years had been a general clerk in a village grocery, and driver of the delivery wagon. This was not insufficient to uphold the award of $5,000. It is true that, since this amount is, under our statute, the extreme limit of recovery in an action for a wrong resulting in the death of the injured party, the plaintiff thus receives all that could be given for the loss of the most valuable life. It is also true that the life of this lad cannot be considered as possessing any extraordinary value. He had, however, a long expectation of life. While his earnings for the next four or five years would belong to his father, he had reason to expect to be able to earn thereafter, for a considerable period, much more than the cost of his personal support. What damage resulted from the loss of his earning capacity it was for the superior court to measure, as best it could, and there is nothing in the case which can be said, as matter of law, to require a lower estimate. Broughel V. Southern New Eng. Telephone Co., 73 Conn. 614, 620, 48 Atl. 753, 84 Am. St. Rep. 139. While no evidence was offered, from

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