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might give to a witness; and the few, if any, at the level of the floor, to the pole, the disnot of this nature, are immaterial, and would tance is 25 inches, at the level of the seats it not affect the finding if added to or ex is 22 inches, wbile at the height of Meyer's punged therefrom. Consequently the finding head above the running board it is 2142 as made must stand.
inches. The running board is 842 inches The only ruling upon evidence, of which wide, and, from the manner in which it is the defendant complains, was correct. The hung, the distance between its outside edge defendant claimed that as Meyer, before he and the pole is 112 inches. Nothing prewas struck, had ridden for some distance on vented the defendant from placing this pole the footboard next to the poles, he was at a greater distance from the track. A car chargeable with knowledge of the nearness traveling rapidly to the east, as was the one to the track of the pole that struck him. To in question, when it strikes the curye aforemeet this claim, it was proper to show that said, "gives a jolt or lurch, and has a tendthe poles passed prior to the accident were ency to throw people upon the car outward.” placed at a safe distance from the track, and Just as the rear of the car, at the time in so would have led Meyer to believe, if he question, was passing this pole, the forward observed them at all, that all were so placed. wheels struck the curve, “there was a jolt,
The court has found, in substance, the fol and Meyer's head was thrown back and lowing facts: Meyer became a passenger on struck said pole, and he was hurled from the a trolley car of the defendant going from car in consequence.” It did not appear that Stillman's Corners towards Meriden. From Meyer had any knowledge of the nearness of the time he boarded the car until he was the pole to the track. thrown off, he rode upon the right-hand, or These are the controlling facts in the case, south, running board of the car, near the and from them the court drew the conclurear platform. The car, when he got on, sion that “the defendant was negligent in was full; every seat and the rear platform permitting its passengers to ride upon said being occupied. Passengers were riding on running board while running its car at such both running boards, and three or four oth rate of speed along the track at the point ers besides Meyer were riding on the south in question, with the pole situated as aforerunning board. The car was a double-truck said." The facts found amply justified this open car, for summer traffic, new and in good conclusion, whether it be regarded as one condition. There was room for persons to of factor of law. Upon the facts found, stand between the seats, and for a few to sit the court ruled that the defendant "had failon the car floor between the seats, with feet ed to disprove that the intestate's injuries on the running board, but it did not appear and death were caused by the negligence althat it was practicable to do so while Meyerleged in the complaint, or to prove that the was on the car. Meyer voluntarily took his plaintiff's intestate was guilty of contribuposition upon the running board, and made tory negligence, as alleged in the notice" no request for a seat; nor did he make any filed before the hearing in damages. There attempt to find a seat inside the car, or be is nothing in the record that shows or tends tween the seats, or upon the platforms. The to show that the court erred in these rulconductor saw Meyer get on, but did not ings. know that he was riding on the running The defendant made some 10 claims of board until he collected bis fare. After do law in the court below, relating to the quesing so, the conductor passed around Meyer, tion of negligence on the part of the defendand stood on the footboard, collecting fares ant, and contributory negligence on the part from passengers on the rear platform. While of Meyer. Most of these claims were based so doing "he felt some portion of Meyer's upon states of fact negatived by the finding, arm or hand strike him, and Meyer was and were properly overruled; and, so far as hurled from the car.” The car was then any of said claims were not so based, there going down grade, with power off, under con is nothing in the record to show that the trol of the brake, at the rate of 15 miles an court overruled them. hour. It was stopped as soon as possible The defendant also made the following within about 300 feet from the point where claim below: "That, upon the facts proven Meyer left the car. The conductor and oth- | at said trial, no judgment can be rendered ers went back, and found Meyer lying on the against the defendant for greater than nomground, about 35 feet from the pole that inal damages.” This, standing alone, is perstruck him. He was alive, but unconscious, haps somewhat ambiguous. It may mean and died within a few minutes after he was that, upon the facts proven, the defendant found. The trolley pole that caused the ac was not guilty of negligence, or that Meyer cident is situated on the south side of the was guilty of contributory negligence, and track, at the outside of a curve, and leans so the plaintiff was entitled to no more than towards the track. Its distance from the nominal damages; or it may mean, as the track, and from a car standing on the track | defendant claims, that there was not suffinear it, leaving out small fractions of an cient evidence bearing upon the quantum inch, is as follows: From the inside gauge of damages to warrant the court in awardline of the south rail to the pole the distance ing the full statutory amount. We are of is 3 feet 6 inches; from the body of the car, opinion that this last is the meaning that
should be given to this claim. The finding For opinion reversing judgment below, see upon this point is as follows: "Upon the 53 Atl. 780. trial the plaintiff, in opening his case, offered no evidence of damages, further than the PER CURIAM. The rules of court (page fact, formally and expressly admitted by the 109, 8 62) provide that when "error" is found defendant, that he (Meyer) was dead, and costs will be taxed, in the absence of special that his age was thirty-seven years; and order to the contrary, in favor of the prevailthere was no evidence as to damages, except ing party. In this case the appellants were such admission and the facts hereinbefore the prevailing party. It was enough to make set forth." This part of the finding occurs them such that they prevailed on any of their near the end, so that “the facts liereinbe reasons of appeal, notwithstanding their failfore set forth" include all the facts in rela ure to sustain all of them. tion to Meyer stated theretofore in the find Gen. St. 1902, § 797, provides that the exing. We agree with the defendant that in pense of printing the evidence, when that is cases of this kind there should be more evi certified up, "shall be paid and taxed as prodence as to the quantum of damage than the vided in section 796.” The latter section promere fact that the injured party died, and vides that such expense "shall be paid" by at such an age. Such evidence, standing the party requesting that the evidence be so alone, would rarely, perhaps, warrant a court certified up, and "may be taxed,” to an in awarding the full statutory amount of amount not exceeding $50, in favor of the damages. But the court below had before prevailing party. Construing these sections it, bearing upon the quantum of damage, together, the words quoted from the former something more than the mere facts of the have the same meaning as if they were age and death of Meyer. There was evi "shall be paid and may be taxed." Under dence tending to show that Meyer was a our rules (section 62) the costs which, unless man of average size, and in good condition otherwise ordered, will be taxed in favor of physically and mentally; and there was evi- | the prevailing party, are costs to the full exdence tending to show that he lived for some tent allowable by law. Such an order as is minutes after the accident, and that he now asked for can only be proper when there suffered some pain. This being so, we can was no reasonable ground for asking that the not say that the court erred in awarding tìne whole evidence be printed. In the case at full statutory amount of damages, especially bar we think there was reasonable ground, in a case like the present, where, from the and therefore the motion is denied. record, it appears that there was little or no contest upon this point as to the quantum
(75 Conn. 515) of damages, and that the attention of the trial court was not called to this matter,
TOWN OF FAIRFIELD v. TOWN OF save by the somewhat ambiguous claim of
NEWTOWN. law hereinbefore stated.
(Supreme Court of Errors of Connecticut. There is no error. The other Judges con
March 4, 1903.)
SUPPORT OF PAUPER-KNOWLEDGE OF RESIcurred.
DENCE PRESUMPTION - FAILURE TO GIVE
LOW-REVIEW. (75 Conn. 381)
1. Plaintiff town sued the town of E. for the MCQUEENEY v. NORCROSS BROS. support of a pauper. In such action, facts were
found, which, by a proper application of the (Supreme Court of Errors of Connecticut.
law, established the pauper's residence in defendMarch 4, 1903.)
ant town. Held, that plaintiff is presumed to APPEAL-COSTS-PREVAILING PARTY EX have known the law, and hence defendant is not PENSE OF PRINTING EVIDENCE.
liable for the pauper's support after plaintiff's 1. Under Rules of Court, p. 109, $ 62, provid knowledge of such facts; no notice having been ing that costs will be taxed, in the absence of served as required by Gen. St. 1902, & 2485. special order, in favor of the prevailing party on 2. Under Gen. St. 1902, § 2485, providing that, appeal, an appellant who sustains the appeal on where the selectmen of a town have knowledge any grounds is the prevailing party, notwith of the town where a pauper belongs, the latter standing his failure to sustain it on all.
shall not be liable for any expense for the time 2. Gen. St. 1902, § 797, provides that the ex during which there was a neglect to give notice, pense of printing evidence certified up "shall be the failure of a town to give notice of a pauper's paid and taxed” as provided in section 796, which condition after it knows to what town he belongs is that such expense "shall be paid" by the does not relieve such latter town of liability for party requesting the evidence to be certified, and support furnished prior to such knowledge. may be taxed,” to an amount not exceeding $50, 3. Though, in an action against a town for the in favor of the prevailing party. Rules of Court, support of a pauper, the claim that defendant $ 62, provides that, when error is found, costs was liable for support furnished before plaintiff's will be taxcd, in the absence of a special order, neglect to give notice to defendant of such pauin favor of the prevailing party. Held that, per's condition was not expressly made by plainwhere appellant prevails, costs of printing the tiff, as such question was necessarily decided in evidence will be taxed to the full extent allowed sustaining defendant's claim that there was no by law, unless there was no reasonable ground liability whatever, it will be considered on apfor printing the whole evidence.
pcal. On motion by appellee for a special order Appeal from Court of Common Pleas, Fairthat no costs be taxed for expense of printing field County; Howard B. Scott, Judge. the evidence on reversal of judgment below. Action by the town of Fairfield against the Motion denied
town of Newtown to recover for supplies für.
nished a pauper. Judgment for defendant, in order to enable them to hold the defendant and plaintiff appeals. Reversed.
liable for such support as they might thereElmore S. Banks, for appellant. Frank M.
after furnish to Stilson. That they still beCanfield, for appellee.
lieved that Stilson had gained a settlement
in Easton, after learning the facts, furnished HALL, J. The selectmen of the plaintiff no excuse for their delay in giving notice to town furnished support for one Stilson, a pau the defendant until that question had been per over 14 years of age, belonging to the de decided by this court. They delayed giving fendant town, from December 22, 1899, con such notice at their own risk. If, after a tinuously until April 10, 1901, at an expense knowledge of the facts, there existed a doubt of $3 a week. From information received as to which of the two towns was liable for from said Stilson, and from the selectmen of support so furnished, the safe course would Newtown and others, the selectmen of Fair have been to notify both. field believed that Stilson belonged to the But the failure of the plaintiff to give the town of Easton; and in April, 1900, a suit required notice until June 3d did not relieve was instituted by the plaintiff against the the defendant from liability for the support town of Easton, in which the plaintiff claim furnished Stilson before the plaintiff had ed that Stilson belonged to that town, and knowledge that he belonged to Newtown. that it was liable for the support so furnish The statute imposed no duty upon the plained him by the plaintiff. The selectmen of tiff's selectmen to give such notice before Fairfield did not obtain knowledge of the they became chargeable with such knowlfacts necessary to determine the liability of edge. Section 2476 provides that paupers the defendant until March 29, 1901, when the shall be supported at the expense of the town court to which said action was brought made where they belong; and section 2485, that the a finding of all the facts bearing upon the selectmen of every town in which a pauper question of the settlement of said Stilson in belonging to another town is chargeable sball the town of Easton. Upon the facts thus give notice of his condition to the town in found, the selectmen of Fairfield still believ which such pauper belongs, within five days ed that by law the town of Easton, and not after they shall know to wbat town he bethe defendant, was liable for the support of longs, and that “when the selectmen have Stilson, until they learned on the 1st of June, knowledge of the town where such pauper 1901, that this court, upon the reservation of belongs such town shall not be liable for any said case against the town of Easton, had expense, for the time during which there advised otherwise, 49 Atl. 200. On June 3, was a neglect to give such notice." Section 1901, the selectmen of Fairfield gave due no 2487 provides that "every town incurring any tice in writing to the town of Newtown of the necessary expense pursuant to 8 2485 * condition of said Stilson, that he had been for a pauper belonging to another town, may furnished support by the town of Fairfield, recover it from such town." As there was and that the town of Newtown was liable no neglect to give notice until the expiration therefor, and thereafter brought the present of five days after March 29th, the defendant action.
is only relieved from liability for the expense It is not claimed that prior to March 29, of the support of Stilson after that time. 1901, the plaintiff's selectmen had such The claim that the defendant was liable, knowledge of the town where Stilson belong under the statute, for support furnished beed as made it their duty to give to the de fore there was any neglect by the plaintiff to fendant notice as required by section 2485 of give the required notice, apparently was not the General Statutes of 1902, to enable the expressly made by plaintiff's counsel in the plaintiff to recover of the defendant, under argument in the trial court; but the quessection 2487, the expense incurred for support tion was necessarily decided by that court, furnished to Stilson before that date. On in sustaining the claim of defendant's counthat day, however, they learned, from the sel that there was no liability upon the part finding of the court, that prior to July, 1895, of the defendant, and in rendering judgment the domicile and residence of Stilson had in favor of the defendant. Atwood v. Walbeen in Newtown, and ascertained all the ton, 57 Conn. 514-524, 18 Atl. 322. Upon the facts upon which it was claimed by the plain- assumption that the plaintiff was chargeable tiff, and also by the town of Newtown, that with knowledge on the 29th of March that after that date he had gained a settlement in Stilson belonged to the defendant town, the Easton. Fairfield v. Easton, 73 Conn. 735, plaintiff, in his reasons of appeal, only claims 49 Atl. 200. They are conclusively presumed that the trial court should have rendered to have known the law, which, applied to judgment in its favor for support furnished such ascertained facts, showed that Stilson prior to that date. The trial court erred in had not acquired a settlement in Easton, and not rendering such judgment. that he ther-fore still belonged to the town There is error, and the case is remanded of Newtown, Stow v. Converse, 3 Conn. for the entry of a judgment for the plaintiff 325-347, 8 Am. Dec. 189; Bestor v. Hickey, for the expense incurred in the support of 71 Conn. 181, 188, 41 Atl. 555. It became Stilson from December 22, 1899, until March their duty, therefore, to give notice to the de 29, 1901, at the rate of $3 a week. The other fendant within five days after March 29th, Judges concurred.
(75 Conn. 548)
ing the wire above the truss of the bridge would NELSON V. BRANFORD LIGHTING &
have been was properly admitted.
11. In an action for wrongful death from conWATER CO.
tact with an electric wire strung over a bridge, (Supreme Court of Errors of Connecticut.
testimony by an expert, who had inspected the March 4, 1903.)
line the year before, describing the line as it then
stood, as a preliminary to showing by him that ELECTRICITY-CONTACT WITH WIRES-DEATH
it was properly constructed as it then stood, was NEGLIGENCE CONTRIBUTORY NEGLI properly excluded. GENCE-DAMAGES-BRIDGES-RIGHT TO USE
DANGEROUS INSTRUMENTS - DEGREE OF Appeal from Superior Court, New Haven CARE REQUIRED-EVIDENCE-JUDICIAL NO
County; John M. Thayer, Judge. TICE-HARMLESS ERROR. 1. Intestate, a boy of 16, was killed by an elec
Action for wrongful death by Ludwig Neltric shock from a wire strung across a highway
son, as administrator of John A. Nelson, debridge by defendant. He was on one of the ceased, against the Branford Lighting & Watrusses of the bridge at the time, preparing to ter Company. From a judgment for plaintiff dive, and caught the wire to prevent himself from falling. Boys were in the habit of diving
on hearing in damages to the court, defendfrom and swimming around the bridge, which
ant appeals. Affirmed. fact was known to the selectmen of the town and to defendant. Defendant's wires were not
Seymour C. Loomis and Earnest C. Simpinsulated, so as to prevent injury from personal,
son, for appellant. Charles S. Hamilton, for contact, nor was there any notice posted that appellee. 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 de
BALDWIN, J. In 1887 the town of Branfendant was negligent was justified by the evi ford built a highway bridge over the Brandence. 2. Intestate knew that a boy had received a
ford river, with a draw. It was a truss shock from the wires the year before, and had
bridge, with a railing on each side. On the reason to know that the current was likely to westerly side of it, outside the railing, was be turned on at the time he met his death, but a platform, with steps leading down to a it was not shown that he knew that there was danger in touching the wire. Held, that a find
small landing for boats, which was eigbt feet ing that defendant had faile to how contribu
below the roadway. Ever since the contory negligence was justified.
struction of this bridge the boys and young 3. A private corporation, which maintains for its own use electric wires over a public bridge,
men in the neighborhood had been, with the is bound to use a high degree of care to prevent
knowledge of the selectmen, in the custom injury to persons using the bridge, taking into of bathing from it in summer, and, while so consideration all the uses to which it is put. doing, of running and exercising themselves
4. A private corporation, which maintains for its own use uninsulated electric wires over a pub.
upon and jumping and diving from all parts iic bridge, cannot object that a person injured
of the bridge and draw; the smaller boys from coming in contact with such wires was not confining themselves to the landing, platrightfully on the bridge. 5. A default in a tort action throws on the de
form, and floor, but the larger ones diving fendant the burden of proving on the hearing in
and jumping from the railings and trusses. damages that the person injured was guilty of In 1896 the defendant constructed a line of contributory negligence.
wires for electric lighting purposes along the 6. An assessment of damages at $5,000, in an action for wrongful death, where the evidence
highway, and bolted one of its poles to the showed that deceased was a bright active boy,
piles of the bridge at each side of the draw. 16 years of age, who for nearly 3 years had been An iron pipe was attached to each pole, a general clerk in a grocery store, is not ex
through which the wires were carried down cessive, though this is by statute the extreme
to the bottom of the river and across the botlimit of recovery in such an action.
7. Judicial notice can be taken of the probabil tom. In the summer of 1900, in lieu of this ity of expectation of life disclosed by the mor arrangement of the wires, overhead wires tality tables. 8. In an action for wrongful death, resulting
were strung between these poles, which could from contact with electric wires hung by defend
be detached and removed whenever a vesant on a highway bridge, it was error to exclude sel passed through the draw. These ran testimony tending to show that the pole on which
over 14 feet above the floor of the bridge, the wires were hung was put in a proper place in being bolted to the bridge, rather than out
and that nearest the west edge of it was in the stream.
about 5 feet 5 inches above the peak of the 9. Under Gen. St. 1902, $ 797, providing that truss and 17 inches west of its west face. the superior court on appeal shall consider the
The selectmen inspected the defendant's line whole record (in which is included the evidence certified) in considering the findings and rulings in 1896, and approved it. They were not of the trial court, where the record in an action consulted as to the change of construction for wrongful death resulting from contact with
made in 1900, and it did not appear that they an electric wire strung by defendant on a highway bridge shows that the court improperly ex
approved it. The use of the bridge for bathcluded evidence tending to show that the wire ing purposes continued thereafter as before, was strung in a proper place, but immediately with their knowledge and that of the defendafterwards permitted the witness to testify that ant. The wires above the draw were insuon the day of the injury the line was in all re
lated so spects properly constructed, the error was harm
as to protect them against the less,
weather, but not so as to make personal con10. In an action for wrongful death from contact tact with them safe. The current was turnwith an electric wire strung along the truss of a bridge, evidence as to what the cost of elevat
ed on every day towards dark, and then
they were dangerous to handle. No notice of 7. See Evidence, vol. 20, Cent. Dig. $ 17.
such danger was given by the defendant, al
though it knew that the bridge had so much lated the wires more effectively. It could iron upon it as to be a good conductor of have strung them out of the reach of one electricity, and that the current was liable to standing on any part of the bridge. It could diversion if one standing on the bridge should have carried them across the river, as it touch the wire overhead, particularly if he originally did, in a pipe laid on the bottom were wet at the time. In July, 1901, at of the river. It could have put up a notice about a quarter before 7 in the evening, the of danger. The trial court had the right to plaintiff's intestate, a boy of 16, who had take into view what the company had not been in the water, while bathing from the done as well as what it had done in deterbridge, walked up the west truss, clothed mining whether it had fulfilled its burden, only in bathing trunks, to the peak, which under the default, of disproving the charge was over 17 feet above the river, and asked of negligence. some boys below if they thought he would The default also threw upon it the burtouch bottom if he dove from there. He den of proving its claim that the plaintiff's then faced about to the west, and-whether intestate was not himself in the exercise of voluntarily or instinctively to prevent a fall due care. There were circumstances indi. did not appear-caught hold of the nearest of cating that he was lacking in this. There the overhead wires, and was killed almost was no proof of any justifying cause for his instantaneously by an electric shock. He grasping the wire, and it was in proof that knew that the wire was an electric light he grasped it at a time of day when he had wire, and that a boy bad received a shock a reason to apprehend that the current might year before, while climbing the nearest of bave been turned on. But, while he knew the poles for the purpose of diving, but it the purpose which the wire served, it was did not appear that he knew that the wires not shown that he knew that there was dan. were dangerous to handle.
ger in touching it. It was encased in a The superior court has found that the de preparation of cotton fibre and paint. Had fendant failed to prove that it was not neg the casing been rubber or gutta percha, the ligent in running the overhead wire as it did, danger from contact with it would have been with no greater precautions against danger slight. A boy of his age is not necessarily to bathers, and failed also to prove that the chargeable with knowledge of the different boy was guilty of contributory negligence. modes of insulation and their comparative There is nothing in the facts specially found effect. That he had knowledge that the inconsistent with these conclusions. The de casing contained a wire, and that an elecfendant was bound to a very high degree of tric light wire, did not, as matter of law or care in the use for its own purposes of a of logical necessity, show that he was not in highway bridge. McAdam v. Central Ry. & the exercise of due care, under the circumE. Co., 67 Conn. 445, 447, 35 Atl. 341. In stances of his situation. It was to be and determining what precautions against dan was considered by the trial court, but it was ger to human life were reasonably neces not absolutely controlling. sary, it was bound to consider all the uses The only proof on the point of damages to which the bridge was customarily put. It was that the intestate was a bright, àctive, Is found that it was convenient to the de intelligent boy of 16, 5 feet 2 inches high. fendant to have the wires no higher above who for nearly 3 years had been a general the truss; but convenience in such a matter clerk in a village grocery, and driver of the is a subordinate consideration. The bridge, delivery wagon. This was not insufficient as part of a public highway, was open to gen to uphold the award of $5,000. It is true eral public use. Under the law of this state that, since this amount is, under our statute, the purposes of a highway are not regarded the extreme limit of recovery in an action as wholly restricted to serving the right of for a wrong resulting in the death of the passage. He who is standing on one as a injured party, the plaintiff thus receives all mere sightseer, to gratify his curiosity, is that could be given for the loss of the most rightfully there. Bunnell v. Berlin Iron valuable life. It is also true that the life Bridge Co., 66 Conn. 24, 36, 33 Atl. 533. The of this lad cannot be considered as possesscustom of boys to dive from the bridge was ing any extraordinary value. He had, howknown to the defendant. The selectmen, ever, a long expectation of life. While his who represented the town which owned it,
earnings for the next four or five years had known of this practice for 14 years. So would belong to his father, he had reason to far as appears, they had expressed no dis expect to be able to earn thereafter, for a approval. Silence for so long a time might considerable period, much more than the naturally be taken as importing acquies cost of his personal support. What damage
It was for them, and not for the de resulted from the loss of his earning cafendant, to determine how the town property | pacity it was for the superior court to measshould be used. As far as the defendant is ure, as best it could, and there is nothing concerned, the plaintiff's intestate was right in the case which can be said, as matter of fully on the truss, and the defendant owed law, to require a lower estimate. Broughel him the duty of not unnecessarily exposing V. Southern New Eng. Telephone Co., 73 him to dangers to life which reasonable care Conn. 614, 620, 48 Atl. 753, 84 Am. St. Rep. on its part could avoid. It could have insu 139. While no evidence was offered, from