The plaintiff in his complaint charges that his intestate met his death by reason of the defendant's negligence in permitting the car which was given into his charge, in its then condition, and with its then equipment, to be used at the time and place when and where the accident occurred. This general charge of negligence is amplified and supported by the specification of a number of matters which, it is alleged, entered into the situation to give the defendant's conduct the negligent character imputed to it. Some of these incidental matters are themselves characterized as having been occasioned by the defendant's negligence.
It is alleged that the car itself was unfit for the use to which it was put at the time and place in question, for various reasons. Upon the trial evidence was offered from which the jury might have found that it had a flat wheel, that it was not equipped with scrapers, and that the doors leading from the body of the car into the front vestibule did not operate freely. There was, *Page 535 however, an entire failure to show a causal connection between any one of these features and either the derailment of the car or the fate which befell the intestate in its front vestibule. No such connection was either obvious, or indicated by either direct testimony or circumstances shown. For the jury to have found it upon the evidence presented would have been to find it upon no more substantial basis than a surmise or conjecture. Kruck v. Connecticut Co., 84 Conn. 401,80 A. 162.
Other conditions, enumerated in the complaint as entering into the situation to make the defendant's conduct negligent, concern the condition of the roadbed and tracks, and the safeguards against mishaps. Evidence was offered tending to show that the tracks at the place of accident ran along the top and only a few feet from the edge of a high embankment, at the base of which was a pond; that at the top of the embankment two lines of tracks were brought together into one by means of an automatic switch; that there was no guard-rail to prevent derailment in the direction of the edge of the embankment, or fence or other construction to obstruct the progress of a derailed car down the embankment; that beginning during the afternoon of the day prior to the accident and continuing through the night and into the following forenoon there was a heavy fall of snow, amounting to from ten to fifteen inches, accompanied with wind; that at the time of accident, in the neighborhood of eleven o'clock, the point of the switch and possibly the groove beyond and between the westerly rail and guard-rail, were packed with snow and ice, and perhaps sand; that the car in which the intestate was was proceeding at a moderate rate of speed; and that it was derailed while passing over the switch or immediately thereafter.
It was possible for the jury to find, from the evidence *Page 536 presented, that the car was derailed by reason of the choked and perhaps frozen condition of the switch, which either prevented it from working properly, or caused the flange of the wheels to ride up on the compacted mass which filled the groove in which it was intended to run, or perhaps by reason of that condition in connection with the similar condition of the groove beyond the switch and that, having become derailed, it plunged down the embankment with nothing to stay its progress.
The plaintiff, having shown that there was neither guard-rail, fence, nor other construction to prevent or minimize the danger from derailment in the direction of the pond, as indicated, offered no evidence to establish that proper construction of the line as one for general use called for any such equipment or construction. He thus lost any benefit he might have derived, had the case gone to the jury, from a finding that the defendant was negligent in this independent particular. But for present purposes his failure in this regard does not possess large significance. The ultimate question presented by the case was not one as to whether or not the defendant was negligent in not providing these things, or some one of them, or in doing or omitting to do this, that, or the other incidental act complained of, but whether or not, considering all things known to it or which by the exercise of due care would have been known to it, it was negligent in respect to its duty as master in continuing to run its cars, or in particular this car, over the place in question. Whether or not due care in construction required a guard-rail, fence, or other erection, as claimed, the threatening character of the embankment, under the conditions in fact, to a car which should become derailed upon the side of the pond, was as obvious as it was real. It was therefore one to be considered *Page 537 in any determination by the company as to whether its cars should be run over its tracks at this place under conditions as they might arise, and by a jury as to whether the running of cars under such conditions was the exercise of due care.
The permanent conditions at the place of the accident were, of course, known to the defendant. The jury might well charge it with knowledge of the storm and its probable consequences. Among the plaintiff's witnesses were two motormen of experience, one of whom testified that he took a car over the locus a short time before midnight of the 25th, and the other, that he ran over it at about six A. M. of the 26th. Each testified that at these respective times the conditions were such that it was not safe to operate cars there. They were not asked, as they should have been, to give their reasons for this opinion, or to state the conditions which furnished the foundation for it. But the evidence was received, and with it evidence as to conditions eleven and five hours, respectively, before the accident, as bearing upon the question of notice, and with this and the other evidence touching the conditions at the time the ill-fated car left the track and plunged down the embankment, enough of a case was made out to forbid the granting of a nonsuit.
Photographs of the locus taken on the day of the accident were offered and admitted. Other photographs were not admitted. These latter were taken a few days before the trial, and showed a guard-rail and fence, such as the plaintiff claimed should have been there at the time of accident. The plaintiff claimed to have shown, and apparently successfully, that the situation as disclosed in the photographs had remained unchanged, except for said rail and fence, and proposed to indicate this change to the jury. The court acted in the proper exercise of its discretion in its ruling, and *Page 538 thus prevented the plaintiff from bringing to the attention of the jury, through these cumulative photographs, a fact not proper for them to know, and which might well be prejudicial to the defendant. Had the photographs been admitted, the plaintiff would have been permitted to accomplish by indirection what was forbidden to him by direct processes. Nalley v. HartfordCarpet Co., 51 Conn. 524, 531.
The other rulings complained of do not call for attention. They arose from the manner in which the evidence was presented, and it is scarcely possible that the same situations will arise again.
There is error and a new trial is ordered.
In this opinion the other judges concurred.