Ashborn v. Town of Waterbury

Hall, J.

The evidence introduced by the plaintiff to show the existence of a depression in the highway near the place of the accident, and of projecting cobble stones at the side of the rails of the tramway, was manifestly neither offered nor received to prove a cause of plaintiff’s injury different from that alleged in the complaint, but to prove the manner in which he came to fall over the defective railing.

The plaintiff was required to prove affirmatively that his own negligence did not essentially contribute to cause the fall. The main contention at the trial seems to have been upon tliis question. The defendant claimed that it appeared by the evidence that the night was clear; that the defect in the railing was obvious; that the plaintiff had been drinking ; and that these circumstances clearly showed that the plaintiff’s injuries were the result of his inability to exercise reasonable care to avoid the danger.

The evidence objected to was undoubtedly admissible as tending to prove that the fall was not the result of the plaintiff’s alleged intoxication, but of an accident, not caused by the plaintiff’s fault, concurring with the alleged negligence of the defendant. However well supported by evidence may have been the defendant’s claim that the plaintiff was intoxicated, it still remained a question of fact for the jury whether the plaintiff’s failure to exercise reasonable care essentially contributed to produce the injury. Thorp v. Brookfield, 36 Conn. 320 . The jury having found that it did *555 not, and having apparently accepted the theory of an accidental stumbling caused by the alleged depression in the path, or by the cobble stones, and without fault of the plaintiff, we cannot upon this appeal review their conclusion.

The fact that the plaintiff would not have fallen from the embankment had there not been the depression or stones in the highway, will not defeat his right to recover under the averments of this complaint and upon the statutory notice as proved, if the stepping into the depression or stumbling upon the stones in the path was either an accident, without fault of either plaintiff or defendant, or if, without fault of the plaintiff, but from the negligence of the defendant, or a third person, it was a contributing cause to the injury, of which the other was the defective railing. Shearman & Red-field on Negligence (3d ed.), § 10; 2 Thompson on Negligence, § 1085 ; Carterville v. Cook, 129 Ill. 152 ; Carstesen v. Stratford, 67 Conn. 428 . In Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238 -244, this court said: “If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the negligence of the defendants, combined with some accidental cause, to which the plaintiff has not negligently contributed, the defendants are liable.”

Had it been true in the case at bar that through the negligence of the defendant the highway was defective, both by reason of the faulty railing as alleged, and of the depression and stones in the pathway, and that both said causes contributed to cause the accident, and that without both it would not have happened, the plaintiff might, either upon a complaint alleging in one count both of said concurring causes,—the notice required by statute having described both causes,—have recovered on proof of either or both; or, upon a complaint alleging but one of such causes, that being the cause or one of the causes described in the notice, have recovered upon proof of the cause so alleged in the complaint. “ Where several acts of negligence cause but one injury, the plaintiff may allege all the acts of negligence in one count and aver that they were the cause, and any one of them proved upon the trial will sustain his complaint.” 2 Boon’s *556 Estee’s Pleading (4th ed.), § 2013. “When several proximate causes contribute to an accident, and each is an efficient, cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes.” Ring v. Cohoes, 77 N. Y. 83 , cited with approval in Carstesen v. Stratford, supra.

Had the evidence shown that the existence of the depression and the presence of the cobble stones in the highway were the sole cause of the accident, so that it would have happened even though the railing had been sufficient, a recovery by the plaintiff would have been defeated by the fact that he had not correctly described the cause of his injury, either in his complaint or notice. But the jury have found that the depression and stones were not the sole cause of the accident. They have said by their verdict that the defective railing was the cause, and that had it not been for such defect in the railing the plaintiff would not have fallen from the embankment. The trial court, several times during its charge to the jury, distinctly called their attention to the fact that the cause of the injury as alleged in the complaint was the absence of a railing, and instructed them that the plaintiff could not recover without proof of that-allegation. With reference to this subject the court used the following language in its charge: “ The cause of the injury is alleged to be the absence of a railing where the public travel was endangered by the want of it. This is a material allegation, and if the plaintiff has failed in his proof upon this point he cannot recover. You are instructed upon this branch of the case, that if you find from the evidence that the absence of such railing was a proximate cause of the accident, without the operation of which the accident could not and would not have happened, then the fact that the plaintiff stumbled over a railing which was down, which stumbling was caused by stepping one foot into a depression and then striking the other foot against some cobble stones above the surface of the pathway, would not prevent the plaintiff from recovery, although the plaintiff did not give any notice of the depression or of the cobble stones to the selectmen of the town, *557 under the provisions of the statute, and although the depression and these cobble stones are not mentioned in the complaint.”

There is no error in the rulings or charge of the court.

In this opinion the other judges concurred.