John P. Fox and Luke Kavanagh, for plain-acter of the expulsion, the particular way in tiff. James J. McGovern, for defendant. PER CURIAM. The evidence supports the count for goods sold and delivered in the declaration. The defendant's exceptions are overruled, and the case is remitted to the superior court for judgment on the verdict. DANEHY v. RHODE ISLAND CO. (Supreme Court of Rhode Island. May 7, 1909.) Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge. Action by Patrick H. Danehy against the Rhode Island Company. Defendant was granted a new trial, and plaintiff brings exceptions. Exceptions overruled, and case remitted for new trial. John P. Beagan, for plaintiff. Joseph C. Sweeney and Alonzo R. Williams, for defendant. PER CURIAM. In refusing to direct a verdict for the defendant the justice presiding at the trial in the superior court said: "I have got a slight question as to the preponderance of the evidence, and I will allow it to go to the jury." But after verdict for the plaintiff, in granting the defendant's motion for a new trial, he used the following language: "In the opinion of the trial court there is a strong preponderance of the evidence in favor of the defendant." This conflict of opinion between the judge and jury, who saw the witnesses and heard them testify, imposes upon this court the duty of scrutinizing the testimony with the greatest care. After a careful examination of the transcript of testimony, and assisted by the argument and briefs of the counsel for the respective parties, a majority of the court are of the opinion that the testimony is insufficient to warrant the verdict of the jury. The plaintiff's exceptions are therefore overruled, and the case is remitted to the superior court for a new trial. (82 Conn. 146) PAVELKA V. ST. ALBERT SOCIETY, BRANCH NO. 30, OF FIRST CATHOLIC SLAVOK UNION. (Supreme Court of Errors of Connecticut. May 6, 1909.) 1. ACTION (§ 1*)-RIGHT OF ACTION-NATURE. A right of action arises from the invasion by some delict on the part of defendant of a primary right existing in plaintiff; the facts which establish the existence of the right and the delict constituting the cause of action. [Ed. Note.-For other cases, see Action, Cent. Dig. 88 1-9; Dec. Dig. § 1.*] 2. JUDGMENT (§ 585*)-RES JUDICATA-IDENTITY OF CAUSE OF ACTION. The complaint alleged that plaintiff was a member in good standing of a benefit society, and entitled to benefits for injury or death, and was expelled from membership without charges of misconduct, as required by the by-laws, or any proceedings or opportunity of being heard. The complaint in a former action in which judgment went for defendant, alleged the same facts, except that the only reason alleged for the wrongfulness of plaintiff's expulsion was the absence of notice. Held, that the cause of action alleged was the same in both actions; the essential element in each being the wrongful char which it was wrongful being evidential, so that the judgment in the former action was a bar to the present action. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1084, 1085, 1092-1095, 1097; Dec. Dig. § 585.*] Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge. Action for damages by Matj Pavelka against the St. Albert Society, Branch No. 30, of the First Catholic Slavok Union. From a judgment for defendant, plaintiff appeals. Affirmed. The complaint alleges that the plaintiff on September 1, 1905, was a member in good standing of the defendant; that the defendant was a benefit society, membership in which entitled one to benefits in case of death or injury; that it maintained a fund for the payment of such benefits; that on September 15, 1905, the plaintiff was expelled from membership without charges of misconduct, as required by the laws of the society, without notice or opportunity to be heard, and without proceedings; and that, by such expulsion, he was deprived of his right to participate in the benefits of the society, and the rights and privileges of a member. The complaint in the former action, which terminated in the judgment pleaded in bar, was based upon the same act of expulsion, and was the same in terms as the present, except that the only reason assigned for the wrongfulness of the expulsion was the absence of notice. John W. Banks, for appellant. Robert L. Munger, for appellee. PRENTICE, J. (after stating the facts as above). The ruling of the court that the cause of action upon which the former judgment pleaded in bar was rendered was the same as that set out in the complaint, and that, therefore, that judgment was a bar to the present action, was correct. A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. Wildman v. Wildman, 70 Conn. 700, 707, 41 Atl. 1. In the present action the plaintiff sets out as establishing and defining his primary right the fact of his membership in the defendant society, and its character as a benefit organization. Grand Lodge v. Grand Lodge, 81 Conn. 189, 205, 70 Atl. 617. The defendant's delict by which, as is charged, this right was invaded, is alleged to have been the plaintiff's wrongful exclusion from that membership. The primary right set out in the complaint in the former action was identically the same, and the delict charged against the defendant was the same. The wrong complained of in both actions was the act of wrongful expulsion, and it was the same act [duced, unless furnished by her with a copy in both cases. The two complaints do not of the stenographer's minutes of such evidiffer, except that in the former the reason for the wrongfulness of the expulsion is specified as want of notice; while in the present it is said to arise from other informalities in the proceedings which resulted in it. The essential fact constituting the charged delict was the wrongful expulsion from membership. Its wrongfulness might result from a sufficient single cause or from a concurrence of causes, each sufficient in itself. However this might be, the essential thing necessary to perfect a right of action would be the wrongful character of the act of expulsion. The conditions creating that character would be only incidental facts evidential of the principal fact upon which alone the plaintiff could rely, and upon which in both cases he did rely. The principles involved are fully considered in Wildman v. Wildman, 70 Conn. 700, 41 Atl. 1. See Black on Judgments, § 731 et seq. There is no error. The other Judges concurred. (82 Conn. 132) dence procured at her expense. It is averred that such a copy would cost several hundred dollars; that to print it would cost about $500 more; that the plaintiff is unable to bear such expense; and that a short summary of the evidence, given in the applications, would be sufficient to enable the plaintiff to present the questions of law arising on the nonsuit, without including the whole evidence in the record. These applications were filed in this court on April 6th and 8th, respectively. On the opening of the April term of the court, on April 13th, the appellee filed simultaneously a plea to the jurisdiction, a demurrer, and an answer. It was irregular thus to disregard the established principles as to the order of pleading; but it is unnecessary to consider the effect of any waiver that might be implied, since the applications are obviously insufficient on their face. The statute under which the nonsuit was granted was enacted in 1852, and provided for a right of review in this court, to be exercised "by motion in error as in other cases." Pub. Acts 1852, p. 8, c. 4. A motion in error was a mode of proceeding then authorized in lieu of a writ of error. It was questionable if it could be supported by a Conn. 253, 257), but the moving party could bill of exceptions (McAlister v. Clark, 33 only obtain a reversal of the judgment against him by showing in some way that there was error on the face of the record. If it were a judgment of nonsuit, this could only be accomplished by bringing into the record a statement of the whole evidence which he had produced. There were then no official stenographers. The practice was therefore for him to present to the court, emAction by Rosanna Lynahan, administra-bodied in his motion in error, what he deemtrix, against Ulyses G. Church and others. After judgment of nonsuit, plaintiff applied to the Supreme Court of Errors for an order requiring the Honorable George W. Wheeler, judge of the superior court, to state the evidence which was produced on the trial of the action before him, or so much thereof as might be necessary to enable plaintiff to prosecute her appeal from such judgment of nonsuit. Application dismissed. LYNAHAN v. CHURCH et al. MENT OF EVIDENCE. The only ground on which a nonsuit granted under Gen. St. 1902, c. 52, § 761, can be set aside, is that plaintiff's evidence made out a prima facie case, and plaintiff, wishing to appeal from such judgment, must make at his own expense a statement of all the evidence at the trial; a mere summary not being suffi cient. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 557.*] ed a proper statement of this evidence. 2 Swift's Digest, 708. This it could then compare with any notes which it might itself have taken, and, after considering anything that might be presented by the prevailing party, proceed to make up the statement required for the record. The introduction of official stenographers and the substitution of appeals for motions in error have not relieved a party who seeks to review in this John O'Neill, for plaintiff. William H. court a judgment against him from the duty Ely, for defendants. of placing before the court below whatever is necessary to enable it to put on record the grounds on which he seeks a reversal. The only ground on which a nonsuit granted under Gen. St. 1902, c. 52, § 761, can be set aside is that the evidence produced by the plaintiff at the trial made out a prima facie case. The appellant in this action was therefore bound to present to the superior court what she deemed a fair statement of the whole evidence. No summary of it could be substituted. That, to do this, she BALDWIN, C. J. These are applications in aid of an appeal which has been taken to this court from a judgment of nonsuit granted by the superior court under Gen. St. 1902, c. 52, § 761. Several days had been occupied by the plaintiff in presenting her evidence to the jury. The substantial reasons of appeal are that the court erred in denying the plaintiff's motion to set aside the nonsuit, and in refusing to state the evidence pro would be obliged to resort to the stenog- | 4. RAILROADS (§ 335*)-ACCIDENT AT CrossING CONTRIBUTORY NEGLIGENCE. rapher's minutes, and be put to large expense, cannot vary the duty which the law laid upon her as a condition of any right of appeal. Her motion for a statement of the whole evidence was therefore one which the trial court committed no error in denying; she having failed to supply it either with a draft prepared by her of such statement, or with a copy of the stenographer's notes. Subsequently she filed in the superior court a written paper in the form of a request for a finding, together with a draftfinding, in which, according to her applications, "she stated fairly, and as fully as she thought was necessary, all the evidence which she deemed material, or which was in fact material in her opinion to present to the Supreme Court of Errors to enable it to determine whether" the superior court had erred in denying a motion to set aside the nonsuit. It is unnecessary to decide whether the statement required by Gen. St. 1902, c. 52, § 762, can properly be termed a finding, within the meaning of that term, as used in Gen. St. 1902, c. 54, § 792, as amended in 1905 (Pub. Acts, p. 286, c. 58), since the "draft-finding" so submitted did not purport to set out the whole evidence produced, and could therefore be properly denied for the reasons already given. It is consequently unnecessary to determine whether this court has jurisdiction to grant the relief sought. See Atwater v. Morning News Co., 67 Conn. 504, 527, 34 Atl. 865; Lord v. Lamonte, 72 Conn. 37, 39, 43 Atl. 491; Ansonia Water Co.'s Application, SO Conn. 326, 68 Atl. 378. No case for relief is presented. Where a traveler approached a crossing driving at a speed of from five to seven miles per hour, and continued without stopping to look or listen until he was within a few feet of the track, when it was too late to avoid an recovery for his death as accident, his contributory negligence precludes a matter of law, though the crossing was an exceptionally dangerous one and the train approached without sounding the bell or whistle. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1087; Dec. Dig. § 335.*] 5. APPEAL AND ERROR (§ 694*)—JUDGMENT OF NONSUIT-STATEMENT OF EVIDENCE. Where plaintiff fails to furnish at his own expense a transcript of the evidence on which a judgment of nonsuit was rendered, the denial of his motion to state the evidence on appeal is proper. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2910; Dec. Dig. § 694.*] Appeal from Superior Court, New Haven County; William L. Bennett, Judge. Action by Anna Cottle, administratrix, against the New York, New Haven & Hartford Railroad Company. From a judgment of nonsuit, plaintiff appeals. Affirmed. Nathaniel R. Bronson and Lawrence L. Lewis, for appellant. John P. Kellogg and Joseph F. Berry, for appellee. BALDWIN, C. J. The plaintiff's evidence presented this case: The intestate, while driving in the town where he had long resided on the highway at a point where it was crossed at grade by the defendant's railroad, was struck and killed by a train consisting of two cars and a locomotive with its tender. The train had just come around a curve, and was going at a speed of some 30 miles an The applications are dismissed. The other hour, headed by the tender. The crossing Judges concurred. (82 Conn. 142) was a dangerous one. The view of the track to one driving toward it on the highway was obstructed by a hill and a bank wall between the track and the highway, extending back from a point near the crossing for several rods along the highway. One approaching the crossing in the direction in which the 1. RAILROADS (§ 346*)-ACCIDENT AT CROSS-intestate was going could not see any considING CONTRIBUTORY NEGLIGENCE-Burden OF PROOF. COTTLE v. NEW YORK, N. H. & H. R. CO. (Supreme Court of Errors of Connecticut. May 6, 1909.) In an action for the death of a traveler at a crossing, plaintiff has the burden of showing the absence of contributory negligence. [Ed. Note.-For other cases, see Railroads, Cent. Dig. 1121; Dec. Dig. § 346.*] 2. RAILROADS (§ 324*)—ACCIDENT AT CROSSING DUTY OF TRAVELER. A traveler approaching a dangerous crossing is bound to exercise care in proportion to the danger. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1020-1025; Dec. Dig. § 324.*] 3. RAILROADS (8_330*)-ACCIDENT AT CROSS ING DUTY OF TRAVELER. That no bell or whistle was sounded for a crossing as required by Gen. St. 1902, § 3787, does not excuse a traveler from looking or listening. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1073; Dec. Dig. § 330.*] erable distance up the track on which the train was being run, until he was some 25 or 30 feet from it. The hill also, if the wind in the highway near it from hearing the locois from a certain quarter, often prevents one an apmotive whistle when sounded on proaching train. The intestate was driving a light wagon at a speed of five to seven miles an hour, and, when his horse's head observed the approaching train. He then was two or three feet from the tracks, first tried to pull up the horse, but a collision was inevitable, and he was instantly killed. When he was from 30 to 60 feet from the track, two men sitting by the road side heard the rumble of the coming train, and called to him to stop. He turned to them with a bow and smile, apparently not understanding what they said, and did not slacken speed.] evidence been furnished to the court in conThe signals by bell or whistle of the approach of the train required by Gen. St. 1902, § 3787, were not given. nection with the motion, its denial could have been assigned for error, there is no occasion to consider. Lord v. Lamonte, 72 Conn. 37, 39, 43 Atl. 491; Lynahan v. Church, 82 Conn. 72 Atl. 726. There is no error. The other Judges concurred. (82 Conn. 135) NEW 1. RAILROADS (§ 99*)-PROCEEDINGS TO ELIMINATE GRADE CROSSINGS PARTIES ENTI TLED TO APPEAL. Assuming the facts to be as thus stated, negligence on the part of the defendant was established; but the burden which lay on the plaintiff of proving the absence of contributory negligence on the part of her intestate was plainly not satisfied. Morse v. Consolidated Ry. Co., 81 Conn. 395, 71 Atl. 553. A traveler approaching a crossing so dangerous BETHEL & REDDING LIME CO. v. in character is bound to exercise a care proYORK, N. H. & H. R. CO. portioned to the danger. While the intestate (Supreme Court of Errors of Connecticut. May had a right to rely to some extent on the fact 6, 1909.) that no bell was being sounded or whistle blown, this did not excuse him from either looking or listening to ascertain whether a train might not be coming when he reached a point where the track could be seen for a considerable distance. Dundon v. New York, N. H. & H. R. Co., 67 Conn. 266, 272, 34 Atl. 1041. Nor was he excused by the circumstance that, as he came near to it, his attention was distracted by the cries of the men by the road side. The fact remains that he drove rapidly on the track without in any way using his senses to discover whether it was clear, when looking or listening or stopping would probably have prevented a collision, and that no evidence was produced which could legitimately be considered as showing that nevertheless he was in the exercise of due care in thus putting himself in the path of the coming train. Fay v. Hartford & Springfield Street Ry. Co., 81 Conn. 330, 337, 71 Atl. 364. The question is not that which might be presented on a hearing in damages after a default, as in Norris v. New York, N. H. & H. R. Co., 78 Conn. 314, 318, 61 Atl. 1075, whether, under the circumstances, there might have been such evidence. The judgment of the court below is justified by the fact that none such was produced. The case was one to call for it, if it existed. When the plaintiff rested, she had therefore not sustained the burden of proving the essential fact that the intestate was in the exercise of due care in placing himself in the position in which he met his death. Popke v. New York, N. H. & H. R. Co., 81 Conn. 71 Atl. 1098. It is also further assigned as error that the superior court denied a motion of the plaintiff to state the evidence which she had produced for the purposes of the appeal. Subsequently it did state it. The reason for denying the motion is not given in the record. It could properly have been denied if the appellant failed to furnish the court at her own expense with a statement of such evidence. We infer from her brief that such was the case, and such is also the fair presumption in support of the judgment. Whether, therefore, had a statement of the Gen. St. 1902, § 3713, providing for a petition by railroad directors for the alteration of grade crossings, requires that the railroad competitioners, the company, the municipalities, and missioners shall give notice of the hearing to the adjoining landowners. Section 3718 provides that the decision shall be communicated to all persons to whom the notice was given, and that any person aggrieved thereby who was a party to the proceeding shall have the same right of appeal as is given by section 3747, concerning appeals from decisions relating to depots. In a alter a part of a branch railroad in certain proceeding to eliminate 16 grade crossings and respects, by which through traffic was to be discontinued, though the tracks were to be turing company not required to be made a party maintained as a stem for spurs, a manufacappeared at the hearing, the records of which recited such fact, and that "said parties were fully, and finally heard." Held, that the commissioners had power to hear any one whose pecuniary interest would be affected by the change, and that the nature of his interest was not made a matter of record, could not lessen his rights, and that the company had become a party, and was entitled to appeal under section 3747. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 304; Dec. Dig. § 99.*] 2. APPEAL AND ERROR (§ 775*) – OFFICE OF MOTION TO DISMISS-OBJECTIONS NOT APPARENT OF RECORD. The office of a motion to dismiss an appeal is not to allege new matter outside of the proceedings in question, but to take advantage of the objections already apparent on the face of the record. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 775.*] Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge. Application to the railroad commissioners by the New York, New Haven & Hartford Railroad Company to eliminate grade crossings and alter a part of its road for that purpose. From an order in favor of the petitioner, the Bethel & Redding Lime Company appealed to the superior court. The appeal was dismissed, and it appeals. Reversed, and cause remanded, with instructions to overrule the motion to dismiss. The order of the commissioners was passed on a petition of the appellee stating this case: It operates a railroad from Bethel to * * * * to a connection * Hawleyville, in the towns of Bethel and New-| track of the New England Railroad Company, town, formerly known as the "Bethel leased to the petitioner. Upon careful conBranch," on which there are 16 grade cross-sideration of the evidence, and from our perings of highways, a description of each of sonal knowledge of the locality affected by which was given. It is proposed to eliminate the proposed changes, we are of opinion that these "by discontinuing, except as hereinafter public safety requires that the grade crossset forth, the use of said line of railroad of ings specified in the petition be eliminated, said Bethel Branch * from a point and in the manner proposed. Owing to the on the main track of the line of railroad, relatively little importance of this branch, it * lately known as the 'Danbury is unlikely that the petitioner will ever be Branch,' southerly of * * able to assume the enormous expense of elimGreenwood avenue in the town of Bethel, inating these crossings by separating the thence running northeasterly about grades of the railroad and the highways, and 31,400 feet to its intersection with it is more unlikely that the towns in which the main line of the railroad, * late- the crossings are located could ever assume ly known as its 'Berkshire Division,' at or their statutory share of the expense which near the Hawleyville passenger station, would fall on them, in proceedings initiated ** and substituting therefor a new line by them for the removal of these crossings. of railroad coincident with and on the line The traffic now passing over the steep ard location formerly of * the Dan- grades and sharp curves of the Bethel Branch bury Branch, * beginning at said can be more safely conducted over the easy point just southerly of Greenwood grades and curves of the proposed route. avenue, thence on and along the There being no stations on the line between line of railroad and location of said Dan- Bethel and Hawleyville, no inconvenience to bury Branch to the Danbury passenger sta- passengers or communities can arise by rea tion in the city and town of Dan- son of the change of route, and the three indus. bury, to a connection with * its tries located on the present line can be servWestern Division; thence on and along the ed by spur tracks, safeguarded, when used at line and location of said last-mentioned highway crossings, both by regulation, regularailroad * to the Haw- tions as to speed, and by flagmen. The leyville Station rates for service over the new route are to with the existing line of railroad be the same as now prevail over the present lately known as the 'Litchfield Branch.' It is line, while the passage of all traffic into and further proposed to use portions of said dis- through Danbury, a city of 20,000 inhabitcontinued line of railroad, at either end there- ants, will furnish additional convenience to of, as a commercial spur track for the service that city, without in any manner depriving of certain commercial industries on said line, the inhabitants of Bethel and Hawleyville of one located substantially two miles southerly any advantages which they now possess. It of said Hawleyville Station, and one other, is difficult, therefore, to see how any interest, substantially a half of a mile northerly of public or private, can be injured by the said Bethel Station, by the installation and changes proposed, but, be that as it may, the construction of a spur track to said indus- safety of the public to be conserved by the tries from the station nearest to the same, doing away with the dangers of these 16 subject to the approval of your board, upon grade crossings to be thus eliminated far application and hearing as provided by law." outweighs any disadvantage which may oc The commissioners ordered notice of the cur to any private interest. Wherefore, after hearing on this petition to be given to the consideration, we do find the allegations appellee and the selectmen of the towns of of said petition to be true, and determine Newtown and Bethel. This was duly given, that the alterations and changes described in and the order appealed from recited that on said petition shall be made by the New York, the day named "the petitioner appeared to New Haven & Hartford Railroad Company, prosecute its petition, and the towns of and at its expense, to wit, that the use as a Bethel and Newtown appeared by their select- railroad of the line of railroad known as the men and counsel, and the Bethel & Red- 'Bethel Branch' [Here followed a description ding Lime Company also appeared, and said of the proposed changes substantially identicparties were fully and finally heard on said al with that stated as proposed in the petilast-mentioned date." The order proceeded as tion] so as to eliminate the crossings at follows: "This is an application for the elim- grade of said railroad by the several highination of 16 grade crossings, in the distance ways in said towns named and described in of six miles, on the line of the Bethel Branch, the following list [Here followed a descripso called, of the railroad of the petitioner, ex- tion of the 16 grade crossings, also copied tending from the Bethel Station, in the town from the petition]." of Bethel, to the Hawleyville Station, in the town of Newtown, by discontinuing the use of the Bethel Branch, and transferring its traffic to the main line of the Danbury Branch from Bethel to Danbury, and from BALDWIN, C. J. (after stating the facts John R. Booth, for appellant. Benjamin I. Spock, for appellee. |