Derwort v. Loomer

Ellsworth, J. This is a motion for a new trial, because the verdict is against evidence. It has been argued before us, as if two issues had been tried to the jury; one upon the sufficiency of the evidence to support the declaration, and the other, the sufficiency of the evidence to support the plea of accord and satisfaction, and release. We are of opinion the jury erred, in rendering their verdict for the defendant, on either ground of defence, and so obviously erred, that we shall allow the plaintiffs to present their cause for trial, to another jury. The court is reluctant, at all times, to set aside the verdict of a jury, for the cause that they have erred in weighing evidence; nor do the court feel at liberty to do this, where the jury have passed upon a mere question of fact, unless we see, that the verdict is so palpably and manifestly against evidence, as that it is apparent their minds were not open to reason and conviction, or that an improper influence, from some cause or other, was brought to bear on their deliberations. We do not say that this is that case; nor that we would now interpose and grant a new trial, did we consider the verdict as involving matters of fact, only. But it involves more. We think the jury must have proceeded upon false notions of law; certainly they did, if they found there had been no fault or negligence, on the part of the defendant, or his agent. Neglect of duty, or legal negligence, is not, in all cases, a pure question of fact for the jury, but is often mixed up with principles of law, so that negligence becomes a conclusion of law rather than of fact; or more properly, it becomes a rule of responsibility, which courts, through the verdict, aim to have applied faithfully and uniformly. Jurors not unfrequently entertain singular notions of the accountability of common carriers and stage proprietors; and they will, sometimes, pertinaciously follow out those notions, notwithstanding the instructions and efforts of the court to the contrary. Upon the undisputed facts in this case, we believe there was clear, culpable negligence in the defendant’s agent. — 253 — Here was a stage-sleigh, loaded within and without, with passengers, thirteen in number, on narrow double runners, (of course, somewhat unsteady,) passing on a road made smooth and sidling, by constant use. And this place was on the edge of a dangerous gutter, which the driver well knew from his long familiarity with the road, both in summer and winter. The danger was enhanced, by the 418 pounds of iron stowed upon the top. Nothing was more probable than that this sleigh would upset, in any place of danger or difficulty. The hind runners slid down the declivity of the worn road into the gutter below, and the stage was upset. It might, under the circumstances, have been expected, and need not be ascribed, to any accidental cause; nothing extraordinary, had happened, and no difficulty existed but what a prudent, careful man could and would have foreseen and avoided. Beyond a question, this stage, for such a load, was greatly overloaded and rendered unmanageable. The place in the road, had become dangerous from the very great use to which it had been subjected, on the day of the accident and the day previous; together with the recent fall of snow. Why, we ask, did the accident happen? Why did the stage upset? It was broad day; the horses were under entire command; and nothing had given way. Now, while we would not be too rigorous in laying down the degree of attention required from stage proprietors and railroad companies in transporting passengers, we must hold them to the greatest care and watchfulness. The rule of law on this subject, is fully established, in our own courts and elsewhere, and is not controverted, by the learned counsel, in this case. The principle is, that in the case of common carriers of passengers, the highest degree of care which a reasonable man would use, is required. This rule applies alike to the character of the vehicle, the horses and harness, the skill and sobriety of the driver, and to the manner of conducting the stage, under every emergency or difficulty. The driver must, of course, be attentive and watchful. He has, for the time being, committed to his trust the safety and lives of people, old and young, women and children, locked up, as it were, in the coach or rail-car, ignorant, helpless, and having no eyes, or ears, or power to guard against danger, and who look to him for safety in their — 254 — transportation. The contract to carry passengers differs, it is true, from a contract to carry freight; but in both cases, the rule is rigorous and imperative: in the latter, the carrier is answerable at all events, except for the act of God and the public enemy; while, in the former, the most perfect care of prudent and cautious men is demanded and required. The stage-owner does not warrant the safety of passengers; yet his undertaking and liability as to them, go to this extent; that he, or his agent, shall possess competent skill, and that, as far as human foresight and care can reasonably go, he will transport them safely. He is not liable for injuries happening to passengers, from sheer accident, or misfortune, where there is no negligence or fault, and where no want of caution, foresight or judgment would prevent the injury. But he is liable for the smallest negligence in himself or his driver. Hall v. Conn. River Steam-boat Co. 13 Conn. R. 320. Stokes v. Saltonstall, 13 Pet. R. 191. The defendant relies upon his proof, that the stage was not overloaded; that thirteen passengers with their baggage, and with freight, to the amount of 418 pounds, placed on the top, is not unreasonable or excessive. He says, his sleigh was strong, his horses kind, his driver skillful and sober; and that this is enough to screen him from liability. Now, all this may be true; and yet there may have been, and we think there was, great and culpable negligence. Obviously, the place had become unsafe and perilous. If the sleigh slipped on the margin of the gutter, it was sure to upset, and if it did upset, the weight of the iron was likely to produce the very result we discover, i. e., pinning down Mrs. Derwort, with her broken arm, until the iron could be removed and she rescued from her alarming condition. We see not why the driver could not have gone, as in fact others did, further East or further West. If necessary, he should have stopped the horses, and descended from his seat, and examined the difficulties in the way. He could have beaten down the drift of snow, if really blocking the path, and he could not otherwise have sufficiently hugged the West bank, or he should have examined and gone, as he certainly might, in the gutter on the East; and if he could not have done either, he should have given the passengers notice of the danger that was apparent, that they might have left the sleigh, — 255 — and thus saved themselves from the imminent danger of passing upon the brink of this gutter. This carefulness might have occasioned some delay and trouble to the driver; but it is no more than what a reasonable man would have done, on the occasion; and if done, it would have saved a world of suffering, and an injury to Mrs. Derwort, which makes her helpless and dependent, through life. It is no apology that freight is put upon these stages, as in this case, under public or any other notices. The liability continues the same. Nor is it any apology, that stage proprietors and their drivers are accustomed to load down their stages with passengers and freight, notwithstanding the state of the roads, until nothing more can be crowded within or accumulated on the top. It is high time that the law on this subject should be better understood and regarded; and that such unpardonable liberties should cease to be taken, by persons who stipulate to carry passengers safely and without exposure. Converting stage-coaches into freight wagons, to transport iron, and well nigh every thing else, is the last innovation upon the rights of the travelling community, and it is one which we do not intend to sanction or countenance. As to the compromise and release by Mr. Huggins, for the sum of 350 dollars, paid to him by the defendant, if that was the ground of the verdict, we fear the jury gave it an importance in their deliberations to which it is not entitled. If indeed the defendant was frank and fair in seeking the plaintiffs’ lawyer at all, rather than the plaintiffs themselves, for the purpose of effecting a compromise, and has properly settled the case, by paying said lawyer the stipulated satisfaction, it is hard, we admit, that he should be obliged to pay it again; but the loss must fall upon one of these parties; and we know of no rule, but what the law declares, to say which shall bear it. It cannot be contended from the evidence, that Mr. Huggins had any specific authority to make a settlement and release. He was, it is true, their attorney, in court, to conduct the cause to a final judgment,; but this gave him no authority out of court to put an end to it, at his election, upon terms satisfactory to himself. It is true Huggins swears, that he was especially authorised to settle with the — 256 — defendant, and discharge the suit; and this is substantially all the evidence the defendant adduces to make out such authority. On the other hand, Mr. Derwort as distinctly denies it, and insists, that he gave no such authority. We do not feel at liberty to give credit to the testimony of Mr. Huggins; for his own narration of the matter, and his admitted deceptive conduct and declarations, destroy the credibility of his testimony. The transaction, viewed most favourably for Mr. Huggins, reflects no honour upon his fidelity and integrity; but rather, it would seem, that under a momentary pressure, he has abused his client’s confidence, and sullied the fame of a profession which lends no countenance to deception and dishonesty. But it is said, Mr. Huggins is to be taken to have authority, because he was the plaintiffs’ attorney in court. No case has been cited which sustains this position. An attorney is the representative of his client in court; he is held to be authorised to commence and conduct that cause to final judgment and execution, and to do whatever is usual and necessary to bring about that end, through all the forms and stages of legal proceedings. Further; there are cases where it is held, that he may go beyond this, as if the execution is returned unsatisfied: it has been held, he may proceed to collect the debt, by instituting a new suit on the judgment. In all cases, he may give directions to the sheriff in levying the execution, and he may receive the money from the sheriff, when collected; but he cannot receive a part of the execution and discharge the debtor; nor can he receive any thing in payment but money, nor the note of the defendant, and much less can he compromise the action, or the claim, before judgment, for what may be satisfactory to himself. We refrain from going into the various distinctions given in the books on this subject. The general question of the authority of an attorney, has often been discussed in courts of justice, and many cases are to be found in which distinctions, of more or less importance, have been taken. But in none of them is it held, that an attorney, who's clothed with no other authority than what is incident to his retainer, can compromise and discharge the claim. We find no reported case where the principles are discussed so elaborately and satisfactorily, as by Ch. J. Hosmer, in Brackett v. Norton, 4 — 257 — Conn. R. 517. To those who wish to prosecute this enquiry further, we refer to Smith v. Bossard, 2 McCord’s Ch. R 409. Gaillard v. Smart, 6 Cowen, 385. Cheever v. Merrick, 2 N. Hamp. 376. Lewis, admx. v. Gamage, 1 Pick. 347. Huston v. Mitchell, 14 S. & R. 307. Kellogg v. Gilbert, 10 Johns. R. 220. Commissioners of Accounts v. Rose & al. 1 Desaus. 469. Gorham v. Gale, 7 Cowen, 739. Richardson v. Talbot, 2 Bibb, 382. Gray v. Wass, 1 Greenl. 257. Holker v. Parker, 7 Cranch, 436. Lambert v. Sanford, 2 Blackf. 137. Herbert v. Alexander, 2 Call, 498, Vail v. Conant, 15 Verm. 314. Sharp v. Grey, 9 Bing 457. (23 E. C. L. 331.) The other Judges were of the same opinion. New trial advised.