Carey v. Day

Hinman, C. J. On the overruling of the demurrer in this case there was a hearing in damages for a fatal injury received by the plaintiff’s intestate while crossing the defendants’ railroad upon the public highway. The defendants, for the purpose of reducing the damages, offered evidence tending to prove the want of reasonable care on the part of the intestate which contributed to his injury, and also that there was no negligence on the part of the defendants in the management or running of their train at the time; which evidence was received, notwithstanding the plaintiff’s objection. This ruling of the court below is claimed to have been incorrect, and the counsel for the plaintiff have elaborately endeavored to distinguish the case from that of Havens v. The Hartford & N. Haven R. R. Co., 28 Conn., 69, and claim moreover that the case of Lamphear v. Buckingham, 33 Conn., 249, supports the claim which they made in the court below, for the exclusion of the evidence objected to. We think they have failed in both instances. In fact the question as to the admissibility of evidence, both of a plaintiff’s negligence contributing to an injury of which he complains, and of the absence of any negligence on the part of the defendant in cases which have been defaulted, or where a demurrer has been overruled, and there is a hearing in damages, has been considered as settled in this court ever since the case of Havens v. The Hartford & N. Haven R. R. Co., and all the cases which have since arisen have followed the decision of that case. And without reference to the cases, it would seem upon principle that it must be so. All agree that a default, or a demurrer overruled, admits a cause of action. But in an action sounding in damages, where the damages are not proved, that is, where the circumstances attending the injury and the extent of it are not shown to the court, merely nominal damages, or the lowest sum which is by law allowable for such an injury as was received, will be awarded. Eor an injury of this fatal kind the statute fixes the damages at not [156] less than one thousand dollars, and they cannot exceed five thousand. The plaintiff in this case having shown that his intestate was killed on a highway crossing the railroad, and having shown nothing further, the court would have presumed that there was on the part of the defendants but that slightest degree of negligence which was barely sufficient to enable the plaintiff to recover, and would have assessed the damages at the lowest sum which the statute allows. The plaintiff therefore was not and could not have been injured by this evidence, even had he been right in his claim as to its admissibility, since he was only entitled to the sum actually awarded him on his bare showing a mere right of action, by showing that "his intestate lost his life by the collision of the sleigh in which he was riding with the passing train of cars at the crossing. He was entitled to this because the demurrer admitted a cause of action, if the declaration was sufficient to enable him to recover upon it at all. But the defendants, for the purpose of reducing the damages to the lowest sum which the statute allows, chose to show the circumstances under which the collision happened. Ought they to be deprived of this privilege because those circumstances showed that in point of fact there was no cause of action if the defendants had chosen to go to trial on a denial of the truth of the declaration ? We think not. For while it may be true that the plaintiff, upon his showing, would only have been entitled to the same, damages that were allowed him, still, the defendants were not bound to trust to the bare presumption that nothing more than the lowest sum allowed by statute would be awarded. We think therefore they had a right to make that sure by the evidence, although that evidence went farther than they claimed, by showing that in point of fact the plaintiff was entitled to nothing, had the pleadings been such as to allow of a judgment for the defendants. But it is quite too late to discuss the question of the admissibility of the evidence upon principle, since it appears clear to us that we cannot reverse the ruling of the court at the circuit without denying the authority of the three recent de [157] cisions of Havens v. The Hartford & N. Haven R. R. Co., 28 Conn., 69, Daily v. The N. York & N. Haven R. R. Co., 32 Conn., 356, and Lamphear v. Buckingham, 33 Conn., 237. We therefore do not advise a new trial. In this opinion the other judges concurred.