Durand v. New Haven & Northampton Co.

Phelps, J. As no recovery was had upon the first and fourth counts in the declaration, we shall not consider at length the effect of the judgment of the Superior Court in overruling the demurrers to those counts, except for the purpose of meeting the claim, that as this is a motion in error, a reversal should follow any error in law committed by the court and properly assigned, though not very material in its effect upon the judgment. Those counts are both framed to charge the defendants with negligence in not having constructed and maintained fences or guards along the line of of its railroad over, upon, and adjoining, the land of the Cheshire Turnpike Company, and immediately contiguous to the traveled path of the turnpike road. By a clause in section sixth of the defendants’ charter, passed in 1846, it is provided that “ said railroad shall be so located that in the construction, completion, use and occupation thereof, it shall in no way interfere with the turnpike road of the Cheshire Turnpike Company, so as to obstruct, impede or endanger the safety of the public in traveling thereon ” ; and that “ said corporation may apply to any judge of the Superior Court who may by law judge [223] between the parties, who shall after notice given appoint three disinterested persons to determine whether said corporation has complied with the provisions aforesaid, and if approved by them their decision shall be final.” 4 Private Laws, 890. Pursuant to the aforesaid provisions, the defendant on the completion of that part of its railroad applied to a judge duly qualified who appointed a committee for the purpose aforesaid, who upon notice and hearing adjudged that in the location, construction, use and occupation of its railroad the defendant had complied with the provisions of its charter, and that the railroad would not in any way “ interfere with said turnpike road so as to obstruct, impede or endanger the safety of the public in traveling thereon.” This was, primd facie, sufficient at the time to justify the defendant in operating its railroad, and if there had been no subsequent legislation on the subject, there would be great force in the claim of the defendant that those counts were insufficient because by the terms of its charter the defendant had done all that was required. But in 1869 the General Assembly enacted a statute requiring “ every railroad company to construct and maintain good and sufficient railings or fences on one or both sides of any part of its road which is within the limits of any public highway or turnpike road or adjoining thereto, when necessary to the safety of persons or property passing over such highway or turnpike.” Revision of General Statutes, 1875, p. 326. Whatever may have been the danger in 1847, when the business of the defendant and the number of its trains were comparatively small, it is found by the court that at the time of the occurrence of the accident to the plaintiffs, the running by the defendant of its trains at that place in the manner they were accustomed to be run, rendered it very dangerous to travel upon the turnpike with a horse of ordinary gentleness, and that the defendant was guilty of negligence, and that no negligence of the plaintiffs contributed to the injury. This provision of the statute applies as well to the defendant as to every other railroad company, and pro tanto operates [224] to modify its charter, which by its terms is at any time open to legislative alteration. In this view of the case, it is obvious that the judgment of the Superior Court in overruling the demurrers to those counts was correct. The third count charges the defendant with negligence generally in so carelessly and improperly conducting its locomotive and train as to frighten the plaintiffs’ horse and overturn the carriage in which they wei’e riding and thereby greatly injure one of the plaintiffs. The want of a fence or railing by the sides of. the track forms no part of the gravamen, and it is therefore free from the objection which the defendant makes to the other counts in the declaration. As a count adapted to the purposes for which it seems to have been designed it is sufficient. The plaintiffs’ horse may have been frightened by the improper management of the locomotive and train independently of the want of a guard, and the injury may have had no connection with the absence of such protection, and the demurrer to this count was also properly overruled. The most serious difficulty which we experience in sustaining the judgment of the court below, arises from the second count and the pleadings relating to it, and the finding and judgment of the court thereon, but we are inclined to consider it not insuperable. This count specially alleges the charter provision requiring the defendant’s, road to be so located as in its construction, completion, use and occupation to in no manner interfere with the road of the Cheshire Turnpike Company, so as to obstruct, impede or endanger the safety of persons passing on the turnpike. The defendant pleaded specially the decision of the committee herein before stated. To this the plaintiffs replied that that decision was obtained from the committee by the fraud and covin of the defendant; to which the defendant specially demurred, and for cause assigned the want of allegation in the plaintiffs’ replication of any specific acts of the defendant or of any of its officers or agents done or authorized which constituted the fraud or covin charged, or of what it consisted, or by whom, or when, or where, the same was practised. The [225] court finds true the facts alleged by the defendant in its plea, and also finds that the defendant’s demurrer to the plaintiffs’ replication admits, because it does not deny, that the decision of the committee was obtained by the fraud and covin of the defendant, and that upon this record admission, and the facts found by the court, the defendant had failed to comply with the terms of its charter, and that the plaintiffs are entitled under this and the third count to substantial damages; and therefore overruled the demurrer and assessed such damages. The errors assigned with respect to this count are that the court improperly overruled the demurrer to the replication, and incorrectly decided that the demurrer admitted that the decision of the committee was obtained by the fraud and covin of the defendant, and erroneously adjudged from said admission, and from the facts found, that the defendant had failed to comply with the provisions of its charter in the: location and construction of its railroad. The demurrer proceeds entirely on the theory that the-plaintiffs should have specially averred in their replication, the particular acts which constituted the fraud and covin of' which they complained, and the persons by and upon whom;, and when and where, they were practised. We are • not prepared to say the replication is for that reason demurrable. The plaintiffs had no special interest in the matter -to which the alleged fraud relates. The parties to it were-the-officials of the railroad company or the committee appointed, by a judge of the Superior Court, or both. By whomsoever • perpetrated, neither the plaintiffs nor the public generally-were in a situation to know the circumstances; and they-cannot now, after this lapse of time, be able to state particu- • larly the means used. Moreover the- demurrer is to. the-replication, which follows substantially the forms prescribed, in Chitty, and in other works on. pleading. The authorities. seem to allow a more general averment in.replications; especially under circumstances, similar- to> those, existing in the: present case. The allegation of fraud and covin was material, and if well made, and not traversed, would be held to be admitted: [226] to be true, and it would reasonably, though not necessarily, follow as a legal conclusion that a decision so obtained was void, and that therefore the defendant had not sufficiently established the fact of the proper location, construction and use of its railroad, and upon that state of facts the plaintiffs would seem entitled to a judgment for substantial damages. We are inclined to this conclusion notwithstanding some of the nicer technicalities of pleading may seem to stand somewhat in the way. The railroad of the defendant runs in and along a principal highway and thoroughfare for the distance of a half mile, and the view at the place where the accident occurred was so obstructed by hushes left by the defendant to he growing on the sides of the track, and by a curve in the defendant’s road, that approaching trains could be seen hut a short distance, and the plaintiffs’ injuries, without fault on their part, were so severe, that we are disinclined without more substantial cause being shown to disturb a judgment which we consider manifestly just. There is no error in the judgment. .In this opinion the other judges concurred.