In this action, the plaintiff having in the District Court of Waterbury obtained judgment for a less sum than he claimed to be entitled to, both parties appealed to this court, the plaintiff's appeal being taken to the next term of this court "to be holden at Bridgeport, within and for the third judicial district," and the defendant's appeal to the next term "to be held at Hartford." The defendant thereupon moved, in this court, that the plaintiff's appeal be stricken from the docket. By agreement this motion was argued with the appeals and the decision reserved.
We think the motion should not be allowed. General Statutes, section 1129, provides for the taking of appeals "to the Supreme Court of Errors next to be held in the judicial district or county where the judgment was rendered." At the close of this section there is a provision that appeals from the District Court of Waterbury "may be taken to the Supreme Court of Errors sitting at New Haven or Hartford." The plain object of this provision was, not to limit the right of appeal previously given, but to extend it to include a place without the judicial district or county, in case of appeal from the District Court of Waterbury. When, therefore, by chapter 141, public acts of 1889, the counties of New Haven and Fairfield were united in one judicial district, it ought not to be held that a party to a judgment *Page 507 rendered in the District Court of Waterbury was thereby deprived of his right to appeal to the next term of this court in the judicial district or county where the judgment was rendered, simply for the reason that, by the merging of the two counties into one district, the next term for the county was by law to be held elsewhere in the district. We think the appeal was properly taken.
Coming then to the case. It appears from the finding that the plaintiff, a hackman, being, as was his custom, with a carriage and horses which he owned and used, at the defendant's passenger station in Waterbury, waiting the arrival of the train, hearing that the train was late, left his carriage in the usual place designated for that purpose by the defendant, requesting another hack driver to look after it, and went into the depot to procure a lunch. While be was absent the horses became frightened, owing, as was claimed, to the fault of the defendant, and ran away, causing injury to the horses and to the carriage.
The defendant's appeal contains two reasons: — error on the facts found, in holding that the conduct of the defendant amounted to negligence, and error in failing to find the plaintiff chargeable with contributory negligence. We think that, applying the principles and tests stated by this court in Nolan v. New York, NewHaven Hartford R. R. Co., 53 Conn., 461, and inFarrell v. Waterbury Horse R. R. Co.,60 Conn., 239, the finding of the court on both points must be held one of fact, which is conclusive and cannot be reviewed. In reference to the defendant's negligence it is found that the engineer of a switcher, in the performance of his duty, ran it down to a point nearly opposite the depot platform, in front of which the plaintiff's and other hackmen's teams were standing. He then blew four short blasts of the whistle to call in the flagman. The four blasts were excessively and unusually loud and shrill, frightening most if not all the horses, accustomed as they were to the cars and to standing at the platform, and they started forward. The engineer knew where the horses were standing, saw the plaintiff's horses jump and begin to run, and, notwithstanding, *Page 508 continued to blow the whistle in an excessively and unusually loud and shrill manner, and the court adds: — "I find as a fact that the defendant's engineer was negligent in blowing the whistle in such an excessive manner immediately behind the plaintiff's carriage, as there was no necessity of "whistling at that particular place."
What duty then does the finding show that the court imposed upon the defendant? Nothing more than this, that in the conduct of their business, in the way and manner which seemed to them best, they should, to borrow the language of this court in Isbell v. New York New HavenR. R. Co., 27 Conn., 404, conduct themselves as the circumstances at the moment required, doing no unnecessary injury to the property of others. It was not the doing or failure to do a specific act; the case did not turn on "the legal effect of a fact." It was the performance of an act, the right to perform which the court did not question, in a manner which the court found excessive, unusual, unnecessary, calculated to cause injury, and which the defendant's servant saw was causing injury, but nevertheless continued, doing nothing to prevent the accident but something to aggravate it. This the court held to be negligence; and we cannot review it in order to reach an opposite conclusion. Indeed, although this is one of the errors assigned, the defendant's counsel have not referred to it either in their brief or in oral argument.
It was, however, strongly argued that the plaintiff, as a matter of law, was guilty of contributory negligence. And many cases in other jurisdictions were cited in which it has been held to be negligence to leave horses unhitched in the street. It is said that the case at bar is even stronger than this, since the horses were left standing in a place of special hazard. The finding however is, that the horses were left in care of a fellow hack driver. And we think that, following the principle enunciated in the cases to which we have referred, the inference of negligence from such circumstances, however much we might ourselves have been disposed to draw it, is not so certain or incontrovertible as to warrant *Page 509 its decision as a matter of law by this court, but is properly to be treated as a question of fact. We therefore hold that there is no error on the defendant's appeal.
We come now to consider the plaintiff's appeal. Two questions are presented, raised upon the following finding: — "The market value of said horses was lessened in consequence of Said runaway, fifty dollars each horse. The plaintiff was earning in his business, at the time of the accident, seven dollars each day, and he would doubtless have continued to earn at approximately the same rate but for the accident for the seven weeks next following, but in consequence of the accident he did not and could not use the horses or carriage during the seven weeks next following the accident. And the plaintiff claimed that he was entitled to recover the lessened market value of the horses, and also the money which he would have earned but for the accident. The court overruled these claims of the plaintiff as being too remote and uncertain, and the plaintiff duly excepted."
We think the court was correct in its ruling as to the plaintiff's prospective earnings. Conceding the point claimed by the plaintiff, that where personal property is injured and not destroyed, the value of the use during the time that the owner is necessarily deprived of it may be recovered, neither the decisions to this effect nor the principles upon which they are based assist the plaintiff to establish his present contention. He did not show or seek to show the value of such use. Whether the fact which the court has found is admissible as evidence tending in any degree to prove the value of such use of the horses and carriage, we need not decide. It is evident that it is not itself such value. That is, it is not the rule of damages, and the plaintiff offered no other evidence and made no other claim. Indeed, the mere proof of what he might have earned by the use of the property, with nothing to show what he might, and could and should, indeed did, earn without it, by procuring another team, or in other employment, ("the value of the plaintiff's time to himself") furnishes very little information concerning *Page 510 the plaintiff's real loss, whether the same be considered proximate or remote. But we think that the lessened market value of the horses in consequence of the runaway was a proximate and legitimate element of damage; and that this court practically though not expressly so held in the case of Clinton v. Howard, 42 Conn. It., 294.
In this last particular there is error on the plaintiff's appeal, and a new trial is granted.
In this opinion the other judges concurred.