Duffy v. J. W. Bishop Co.

Keeleb, J. The defendant claims that while the contract between it and the Jackson Stone Company, plead as a special defense, may not be a defense to recovery in the action itself, yet it clearly shows an equitable reason for not permitting the latter to collect, and that a defense to that effect may properly be interposed in the action. The action is one in tort by Duffy to recover from defendant damages suffered by reason of the negligence of its servants. The right of action *578 does not flow from any contractual liability, nor are the provisions relative to injuries contained in the Workmen’s Compensation Act in any way germane to the cause of action involved. Duffy, in this action, was not seeking compensation from the defendant as a principal contractor. The Jackson Stone Company is a coplaintiff by reason of one particular provision of that Act, in order that it may recover out of any sum allowed as total damages for the injury, such proportion of the same as it has paid to the plaintiff Duffy by reason of an award made to the latter by the Compensation Commissioner. Its joinder as a coplaintiff does not draw into the present action any of the other provisions of the Act, or any implications arising therefrom. Such being the case, the questions raised in the appeal concerning the contract of indemnity between the defendant and the Jackson Stone Company, its effect and whether it is against public policy, as well as any claim connected with General Statutes, § 5345, relating to the liability of a principal employer to make compensation for injuries to an employee of a subcontractor, the construction of this section, or its constitutionality, are taken out of the case and need not be considered. The defendant assigns as error, the conclusion of the trial court that, as to the injury, Duffy was in the exercise of due care. This is a conclusion of fact to be made by the trial court, and if logically supported by subordinate facts legally competent to support it, presents a conclusion not reviewable on appeal. Fox v. Kinney, 72 Conn. 404, 44 Atl. 745. 'It appears from the finding that the plaintiff was seated in the forward part of the car riding backward with his back to the driver, and that the car was going down-hill on a winding road; it swayed somewhat and two of the other passengers made remarks *579 concerning the way in which the car was going. The plaintiff noticed only that the car was going at a high rate of speed. He was in no position to note anything about the car which indicated that it was in any way defective, nor does it appear from the finding that there was any indication of defect which he should have noted before getting into the car. He had no. control over the operation of the car. It is found that he did and said nothing. He was not called upon to say or do anything unless he knew or ought to have known that the car was being operated negligently. The negligence of the driver must have been so apparent and gross that he was bound to know it. Clarke v. Connecticut Co., 83 Conn. 219, 227, 76 Atl. 523. Furthermore, it must appear that the negligence, if any, of Duffy, was the proximate, efficient and essential cause of his injury. It cannot be said that if he, like one of his fellow-passengers who was riding at the rear-end of the car with his legs hanging out, had stated that he was going to get out, or like another had said that the car was swaying, that he would have thereby exhibited due care, and that his neglect to do so was an efficient cause of his injury. He did nothing; appellant claims that he should have done something; just what does not appear, unless that due care required that he should leap from the car and take the risk of severe injury. All that he observed was that the car was going rapidly; it does not follow that this fact was such a notice of danger as to call for action on his part. It was certainly the province of the trial court to conclusively say whether it did or not. In failing to charge Duffy with contributory negligence the court did not err. Appellant also maintains that it did all that it was required to do in the way of due care in view of the duty owed to Duffy, whom it claims was merely an invitee in the car. We cannot hold that this was his *580 position. Under the facts found by the court he was a passenger for hire, and the defendant was a private carrier charged with all the duties pertaining to- such a person. ' The contract of defendant with the Jackson Stone Company does not provide for the transportation of the latter’s employees, but is concerned with matters of construction and the like. The contract of carriage was entirely separate from the building contract. Being á private carrier for hire, it was the duty of defendant to exercise the usual skill, care and diligence ordinarily exercised by those engaged in the same pursuit, to furnish safe cars and appliances for transportation of these workmen, and a proper driver of the car. Its duty was equated to that of the keeper of a livery-stable as defined in Stanley v. Steele, 77 Conn. 688, 60 Atl. 640, and Deming v. Johnson, 80 Conn. 553, 69 Atl. 347. The owner of a livery-stable is bound to furnish a safe carriage and a competent and safe driver. On the same principle, the owner of an automobile carrying passengers for hire is bound to furnish a safe car and a safe and competent chauffeur. The case of Stanley v. Steele, supra, is largely concerned with the question of inspection, and it is therein held that such inspection should be such as to exhibit the ordinary care of a person engaged in such business. The trial court was abundantly justified in holding that reasonable and proper inspection was a duty of the defendant. It was equally justified in concluding, from the subordinate facts found, that defendant did not exercise due diligence or ordinary care and prudence in regard to inspection. The defendant’s machinist who repaired its cars inspected the machine after it had earlier in the day been in collision. His examination was superficial and inadequate. The extent of damage to the car, as detailed *581 in the statement of facts, resulting in bending the wishbone which controlled the steering of the car, should have indicated that the car was not fit to use without repair or readjustment. The court finds that the examination consisted in a brief general inspection of the car, disclosing to him no serious defect. After an accident the examination should have been neither brief nor general. The machinist was negligent in this regard. The court was justified in finding that the driver was also negligent; he felt that the steering wheel shifted and the car wobbled from side to side, yet he did not stop as he should have done, and try to ascertain the cause of the trouble, but permitted it to run for about five hundred feet when the trouble recurred, and even then, though at that time he could have stopped the car in ten feet, he permitted it to run thirty feet further when it ran up the bank and the occupants were thrown out, and the injury to Duffy occurred, as a direct result of the want of care above detailed. The defendant assigns error in that the court allowed interest upon the amount awarded for physical injury, pain, suffering and disability, and apparently for the amount paid for medical and hospital expenses for which Duffy was liable on that account. In this the court erred. The instant case does not come within the rule laid down in Regan v. New York & N. E. R. Co., 60 Conn. 124, 143, 22 Atl. 503, and in New York, N. H. & H. R. Co. v. Ansonia L. & W. P. Co., 72 Conn. 703, 705, 46 Atl. 157. Prior to the trial of the action the amount to be awarded Duffy for. pain and suffering had not been ascertained nor liquidated. In actions of this class damages are assessed by a jury up to the date of trial, and include all future as well as past sufferings and disabilities. Hence no interest is allowable from the date of the injury. It does not appear when Duffy paid his medical and hospital charges, or that he had *582 in fact paid them. Hence nothing in the way of interest on these items was allowable. The action of the court in this last regard is erroneous, but as in the finding of the court the amount allowed for interest appears in a separate item, the error can be corrected without a new trial by deducting this amount from the damages recovered. There is error and the case is remanded to the Superior Court with direction to enter judgment for Duffy for the damages awarded him by the court, less the item allowed for interest, that is, for $946.55. In this opinion the other judges concurred.