crossing in such a condition, or under such commenced to pull him up?" The jury recircumstances, as to indicate that he was turned a verdict for the defendant without heedless of the danger signals; as, if other answering any of said interrogatories, and sounds were prevailing, as of a thunder the plaintiff thereafter filed a motion in arstorm, which might render the sound of the rest of judgment on the grounds: “(1) Of the signals indistinguishable. In such cases the misconduct of the jury in failing to comply company might properly be charged with the with the direction of the court to answer consequences of the personal negligence of several certain questions, or interrogatories the engineer. submitted to them by the court with the direction that the same should be answered by the jury, and returned to court when they returned their verdict in the above cause; (2) in returning their verdict for the defendant without returning the answers to several certain interrogatories submitted to them by the court to be answered in the event that they arrive at a verdict." The court denied said motion. The denial of said motion and the reading of said interrogatories to the jury, and the instructions given concerning them, are among the errors assigned in the appeal. “(6) The claim is that the circumstances in evidence present an exceptional case, in that the engineer of the defendant either knew or ought to have known of the peril of the plaintiff's intestate, and might thereafter have avoided injury to Freedman had the engineer exercised reasonable care. "(7) If you find Freedman was in peril, and the engineer knew, or ought to have known, it, then reasonable care required him to use every precaution to avoid the injury to Freedman which a reasonably prudent person, similarly situated, would use. If a reasonably prudent person would have, under these circumstances, blown the whistle or checked the speed or stopped the train, it was incumbent upon the engineer to have done this; and, if by so doing injury to Freedman would not have occurred, the defendant is liable, unless Freedman's own negligence thereafter essentially contributed to his injuries. If the doing of any of these things, or of any other things, after the engineer knew, or ought to have known, of this peril, would not have avoided the injury to Freedman, the defend ant cannot be held liable for its failure to have done them." The statements contained in the paragraphs of the charge above. marked "4," "5," "6," and "7," are among the reasons of appeal assigned. Walter J. Walsh, for appellant. Harry G. Day and Thomas M. Steele, for appellee. The contention of the plaintiff that the court HALL J. (after stating the facts as above). instructed the jury, by the language of the first three lines of paragraph 4 of the charge, as above numbered, that the engineer owed no other duty to the plaintiff than to ring from the context that in the statement comthe bell cannot be supported. It is clear plained of the court referred to the general statutory warnings. In the same paragraph 4 the court said it was the duty of the engineer to keep a "vigilant outlook for travelers upon the highway at or near the crossing, so as to avoid injury to them," and in paragraph 7 that it was incumbent upon him to blow the whistle, or check the speed of the train, if reasonable care required it, in view of the fact that he knew, or ought to have known, of the perilous position in which Freedman was placed. Whether after he learned, or should have learned, that Freedman was in peril the engineer did all that a reasonably prudent person would have done to avoid the accident was fairly submitted to the decision of the jury. During his charge the trial judge read and explained to the jury the following written interrogatories, which he informed the jury the defendant had submitted, and that it would be necessary for the jury to answer: "If you find the verdict for the plaintiff, you will answer the following interrogatories: (1) Before the collision was some part of an approaching train, consisting of an engine, tender, and caboose, at all times visible from a point about 600 feet south of the Brewster street crossing up to the crossing to a person on the seat of an ordinary open grocery wagon approaching from the east, and within 75 feet of the crossing? (2) Did Freedman pull up his horse when close to the track, and just before the collision? (3) Or did Freedman pull up his horse when some 40 to 60 feet from the crossing? (4) Did Freedman know of the approach of the train while he was approaching the crossing, and before he began to pull up his horse? (5) Did Freed-proaching would defeat, to a great extent, man look for a train before he began to pull -up his horse? (6) Did Freedman listen for a train before he began to pull up his horse? (7) Did Freedman, while approaching the As applicable to the facts of this case, we find no error in the charge of the court, or its refusal to charge as requested, upon the question of the rate of speed of the train as an element of negligence. To transport persons and property rapidly is the principal purpose of railroads. To require railroads to generally so reduce their speed at all grade crossings as to avoid collisions with persons who may carelessly or accidentally be upon the crossing when a train was ap the purpose of the existence of railroads. To run trains over grade crossings at a rate of speed reasonably necessary for the accomplishment of the purposes of railroads is al were dangerous, and as to affording opportunity to see approaching trains were evldently more dangerous than the one in the case at bar. In the present case the trial court rightly and very clearly instructed the jury that they might find the defendant negligent, if they found that after the engineer knew, or should have known, that Freedman was in a position of peril he failed to slacken the speed of the train, or to blow the whistle, when reasonable prudence and care required him to do so. Upon the facts before us apparently the only reasonable grounds for a recovery by the plaintiff were that the engineer negligently failed either to keep a proper lookout in approaching this crossing, or to slacken the speed of the train sooner that he did. These questions of fact were fairly submitted to the jury, and were by the verdict answered in the negative. trains for proper railroad purposes it is gen- | hour. The crossings in both of the cases erally the right of a railroad company, in the absence of legislative restriction, to propel them over highway crossings in the way in which they are usually and reasonably run. Baldwin's American Railroad Law, 408. For the dangers necessarily resulting from so propelling them over grade crossings, sanctioned by the state, the railroad company is not responsible. Cowles v. N. Y., N. H. & H. R. Co., 80 Conn. 48, 54, 66 Atl. 1020, 12 L. R. A. (N. S.) 1067. For the protection to some extent of others who may have occasion to use the highways at grade cross ings the state has, through its Legislature and railroad commissioners, assumed the regulation of the conditions upon which railroad companies may propel their cars over existing grade crossings, by providing, among other things, what signals of approaching trains shall be given (section 3787, Gen. St. 1902); that the railroad commissioners may order gates, or electric signals, or a flagman, at any railroad crossing in any town, city, or borough (section 3888); that they may permit passenger trains to run past any highway crossing at such rate of speed they may prescribe, and make orders for the regulation of the speed at which locomotives and cars shall cross highways (sections 3798, 3893); and that they shall have the exclusive power to regulate the speed of railroad trains within the limits of cities and boroughs (section 3894). There was no error in denying the plaintiff's motion in arrest of judgment. Having returned a verdict for the defendant, the jury were not required to answer the written interrogatories submitted to them. They were presented by the defendant only, and it appeared upon the face of the writing propounding them that they were to be answered only in case the jury returned a verdict for the plaintiff. Presumably plaintiff's counsel knew this. If they desired to submit interrogatories or to have those proThe evidence was that the train was run- pounded by defendant answered in case of ning at from 25 to 50 miles an hour. The a verdict for the defendant, they should complaint alleges as an act of negligence that have made such desire known before the the rate of speed was high, unlawful, and verdict was rendered. If they understood dangerous. It was dangerous, and it would the interrogatories were to be answered even have been if running at the lowest rate nam- in case of a verdict for the defendant, they ed. It was not unlawful in the sense that it should, when the verdict, was returned withwas in violation of any order of the railroad out such answers, assuming that the court commissioners, as it does not appear that might then properly have directed them to be they had fixed any rate of speed. The train answered, have at least either requested was apparently run at that rate of speed for the court to order them to be answered, or proper railroad purposes. Upon the appar- have objected to the acceptance of the verently undisputed facts the jury could not dict without the answers, instead of remainproperly have found that the defendant was ing silent until after the jury was dichargnegligent in merely running its train over ed. Ward v. Busack, 46 Wis. 407, 1- N. W. this crossing at the rate of speed named, in 107; Mayo v. Halley, 124 Iowa, 675, 100 the absence of any restrictive order of the N. W. 529; Bagley v. Grand Lodge, 131 Ill. railroad commissioners. Dyson v. N. Y. & 498, 22 N. E. 487. But in their brief, counN. E. R. R. Co., 57 Conn. 9, 21, 17 Atl. 137, sel for the plaintiff make the claim, which 14 Am. St. Rep. 82; Tessmer, Adm'r, v. N. Y., is somewhat inconsistent with that made in N. H. & H. R. R. Co., 72 Conn. 208, 212, 44 their motion in arrest of judgment, that Atl. 38; Gillette v. Goodspeed, 69 Conn. 363, the trial court erred in submitting these 368, 37 Atl. 973. In the first of these cases interrogatories to the jury. No such question cited this court held that the trial court err- was raised in the trial court, although the ed in deciding that the defendant was negli- plaintiff apparently had full opportunity to gent in running its cars over a city grade do so. In the absence of objection the plaincrossing, unprotected by flagman, gate, or tiff may be presumed to have assented to bell, at a rate of speed of from 35 to 40 miles the submission of these questions. Willard v. an hour. In the second case it was held that Stevens, 24 N. H. 276; Allen v. Aldrich, 29 the trial court committed no error in decid- N. H. 63. Clearly the question of the pow. ing that the railroad company was not neg-er of the court to do so is not raised by the ligent in running its train over a borough motion in arrest, which only complains of crossing, unprotected by flagman, bell, or the failure of the court to direct the inter which it can be claimed to be raised by this | England states, to propound such interrog appeal is by the assigned errors in the charge atories to the jury, although Rhode Island of the court in which it instructed the jury is, we believe, the only one of them in which regarding the answering of the interrogato- the practice has been sanctioned by statute, ries. But as the right of parties to present | Clementson's Special Verdicts, c. 2, p. 16. such interrogatories, and the power and In Newell v. Roberts, 13 Conn. 63, 73, the duty of courts to submit them to the jury, defendant pleaded four defenses upon each are important matters of practice, which of which issue was joined. There was a genhave never been passed upon by this court, eral verdict for the defendant, under the we shall consider these questions as if they instruction of the court, that the jury might were properly raised by the appeal. return such verdict upon finding a certain Unlike a large number of our states, the fact. This court, by Williams, C. J., said statutes of which upon this subject are dis- that while it was not prepared to say that cussed by Mr. Clementson in his Manual Re- the verdict would not do entire justice to the lating to Special Verdicts and Special Find- parties in the case, it might in its conseings by Juries (chapter 3, p. 24), Connecticut quences injuriously affect their rights beyond has never by express legislation either regu- that suit, and that the parties had a right to lated or authorized the submission of such an expression of the triers upon each of the interrogatories to juries in the trial of cases. distinct points so in issue. In Frazier v. Section 757, Gen. St. 1902, authorizes a spe- Harvey, 34 Conn. 469, 470, which was an accial verdict by which the jury may find the tion on a warranty with the common counts facts and refer the questions of law to the in assumpsit, a general verdict for the plaindetermination of the court. Though they tiff having been returned, the court inquired may to some extent both subserve the same of the jury if they found the warranty provpurpose, there is still a material difference ed. They replied that they did not. A new between special verdicts and findings by re- trial was granted upon the ground that there sponses to interrogatories. By the former could be no recovery upon the common no unconditional general verdict is rendered. counts, and there was no criticism of the but the jury find the facts and submit the action of the court in so interrogating the question of law arising upon them to the jury. It has been the common practice in court. 1 Swift's Dig. p. 774. By the lat- this state, when a complaint contains several ter answers pertinent to, and perhaps con- counts for distinct causes of action, for the trolling, although not necessarily fully cov-court to direct the jury, in case of a verdict ering, an issue framed, are given, always for the plaintiff, to designate upon which in connection with a general verdict. Clemcount it was found. Morris v. Bridgeport entson's Special Verdicts, 45. The purpose Hydraulic Co., 47 Conn. 279, 291; Spencer v. N. Y. & N. E. R. R. Co., 62 Conn. 242, 251, 25 Atl. 350. In Johnson v. Higgins, 53 Conn. 236, 241, 1 Atl. 616, 619, the court, by Stoddard, J., said: "The practice obtains generally in this state rather to direct the jury to return verdicts upon each of several distinct counts, embracing independent matters, than to obtain the required information by inquiry of the jury, or by framing special verdicts, although both of the two latter modes have been resorted to." While we cannot expect from a jury such a special finding, as may be required of a court, of the facts upon which its judgment is founded, it is feasible, and often necessary, and especially as affording the basis of a possible appeal, where generally every intendment is in support of the verdict, that some of the elements which enter into the verdict may appear upon the record. Carroll v. Bohan, 43 Wis. 218. For this purpose the presiding judge has the power to submit written interrogatories to be answered by the jury upon returning a general verdict. When and to what extent this should be done, and when and how counsei may request interrogatories to be propounded, it is, to a great extend, in the absence of any statute or rule upon the subject, the duty of the trial court, in the exercise of a reasonable discretion to deter of the former is to furnish the basis of a judgment to be rendered, and of the latter, by eliciting a determination of material facts, to furnish the means of testing the correctness of the verdict rendered, and of ascertaining its extent. Sturgis First National Bank v. Peck, 8 Kan. 660; Chicago, etc. R. R. Co. v. Dunleavy, 129 Ill. 132, 22 N. E. 15; Durfee v. Abbott, 50 Mich. 479, 15 N. W. 559. The power of the trial court to submit proper interrogatories to the jury, to be answered with the return of their verdict, does not depend upon the consent of the parties or the authority of statute law. In the absence of any mandatory enactment it is within the reasonable discretion of the presiding judge to require, or to refuse to require, the jury to answer pertinent interrogatories, as the proper administration of justice may require. Dorr v. Fenno, 12 Pick. (Mass.) 521; Spaulding v. Robbins, 42 Vt. 90. In Walker v. New Mexico, etc., Pac. R. Co., 165 U. S. 593, 597, 17 Sup. Ct. 421, 422, 41 L. Ed. 837, Justice Brewer, in delivering the opinion of the court said: "The putting of special interrogatories to the jury and asking for specific responses thereto in addition to a general verdict is not a thing unknown to the common law, and has been recognized independently of any statute." It has been for a long period the settled L. Ed. 286; Spurr v. Inhabitants of Shel- 2. MUNICIPAL CORPORATIONS (§ 164*)—Coм- The purpose of Const. Amend. art. 24, prohibiting cities from paying extra compensation to any public officer, or increase his compensation, to take effect during his continuance in office, was to prevent cities from making gratuitous compensation to public officers, and not to prohibit them from regulating their services and compensation, so that an ordinance increasing the salary of patrolmen, effective the succeeding fiscal year, was not the vote of the gratuity within the Constitution. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 370, 371; Dec. Dig. § 164.*] 3. MUNICIPAL CORPORATIONS (§ 67*)-LEGIS- The Legislature may authorize a city to make, alter, and repeal ordinances relating to the compensation of city officers. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 67.*] We shall not attempt to formulate definite rules for determining accurately in every case just what interrogatories may be so submitted to the jury. It may, however, be well to state the following as some of the general requisites of such permissible interrogatories: They should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable, each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact, and never for a conclusion of law. No question should ask for the finding of a purely evidential fact, nor of an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which may be of material weight in deciding it. No interrogatory should be permitted, the response to which cannot serve either to limit or explain a general verdict or aid in proceedings for a subsequent review of the verdict or judgment which may be rendered. We do not find it necessary to decide whether the seven questions propounded conform to the principles above stated. It is sufficient to say that we find nothing in them to justify the conclusion that the necessity of answering them, if they rendered a verdict for the plaintiff, may have induced the jury to return a verdict for the defendant. There is no error. The other Judges con- City of Bridgeport. On reserved questions curred. The refusal of the board of apportionment and taxation of the city of Bridgeport to appropriate sufficient funds to pay the increased salary for patrolmen, authorized by ordinance, would not prevent a policeman from recovering the increased salary, as funds for that purpose could be made available either by reducing other expenses of the police department, or, if that was not possible, the city council could reduce the number of patrolmen or could, under its charter, make a special appropriation for that purpose out of any unappropriated city revenue, and, in the absence of a showing that there was not enough left unexpended out of the appropriation for the police department to pay the increased salaries, the failure of the board of apportionment and taxation to make an appropriation for that purpose was not a defense to an action for the increased compensation. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 186.*1 4. MUNICIPAL CORPORATIONS (§ 186*)-COMPENSATION-INCREASED COMPENSATION-INCREASED DURING TERM. The charter of the city of Bridgeport prohibits the increase of the salary of any officer appointed for a definite term during his term of office, and another section makes certain provisions apply both to persons holding office for a fixed term and those holding during good behavior. Held, that the provision relating to the increasing salaries applied only to officers appointed for a definite term, and, since policemen held office until removed for cause, their salaries could be increased during the continuance of their appointment to the service. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 186.*] Case Reserved from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge. Action by James H. Sullivan against the upon an agreed statement of facts. Judgment advised for plaintiff. Elmore S. Banks and William A. Redden, for plaintiff. Thomas M. Cullinan, for defendant. THAYER, J. The plaintiff has been a member of the defendant's police force since 1886. Prior to October 9, 1907, and continuously up to the commencement of this action, he had been a policeman in grade A, the highest of the four grades into which the patrolmen of the police force are divided. By an ordinance fixing the salaries and compensation of the officers and men of the police department in force on and before October 9, 1907, policemen in grade A were entitled to and received $2.90 per day. On that day the common council passed an ordinance, to take effect at the beginning of the city's next fiscal year, April 1, 1908, and repealing as of that date all inconsistent ordinances, whereby the salary or compensation of each of the officers and each grade of patrolmen was increased. The salary or compensation thereby fixed for patrolmen in grade A was $3.25 per day. The plaintiff without reappointment continued to, serve as a patrolman in that grade after April 1, 1908, and has demanded payment for such service since that date at the rate of $3.25 per day. The defendant has paid him at the old rate, $2.90 per day, and has refused to pay the balance claimed. The case is reserved for the advice of this court upon an agreed statement of facts. The defendant's refusal to pay the increased compensation is based upon three grounds: First, "because both the board of apportionment and taxation and the common council of the defendant city failed and refused to make an appropriation for the police department sufficient to pay such increase in the compensation of members of the police department, and because it is provided by the charter of the city that no money, other than that appropriated, shall be expended for any purpose"; second, "because it is provided by the charter that 'no salary of any officer, employé, agent or servant of the town or city elected, chosen or appointed for a certain term shall be increased or diminished by any action of the common council to take effect during said term'"; third, because "such attempted increase in the compensation of the members of the police department was prohibited by article 24 of the amendments of the Constitution of the state." appropriation and tax levy for their pay ment; but if they fail to do this the police commissioners may, the appropriation for their department being for a definite sum for general purposes, by cutting expenses elsewhere reserve sufficient for the payment of the fixed salaries. If this is not possible, the common council may under the charter make a special appropriation to meet the deficiency, if there is unappropriated revenue of the city sufficient to meet it, and, if not, it can reduce the number of policemen so that the appropriation already made will be sufficient to meet the salaries of those remaining. It is found as a part of the case that the board of apportionment and taxation failed and refused to make an appropriation sufficient to pay the increased salaries in the police department provided for in the ordinance of October 9, 1907, and that the common council has not since reduced the number of policemen or made a special appropriation for the purpose of paying the increase in salaries and compensation; but it is not found that, at the time this action was brought, there was not remaining of the appropriation which was made sufficient to pay the increase on all salaries then due. Less than two-thirds of the fiscal year had then passed, and presumably a large part of the appropriation for the police department then remained unexpended. It does not appear therefore that the city was not then in funds appropriated for the purpose sufficient to pay the plaintiff's demand. Upon the facts found therefore the defendant's first defense does not justify its refusal to pay the balance claimed if the same was legally due. It is the duty of the board of apportionment and taxation to determine in February each year the requirement of each department of the city government for the ensuing fiscal year, to apportion to each its required amount, and to lay a tax to meet the total requirement. The fact that in making its estimates for the police department this board We assume that the refusal of the board failed or refused to make an appropriation of apportionment to appropriate sufficient sufficient to pay the increased compensation to meet the increase in salaries was because. to the members of that department is not the board questioned, upon the grounds conclusive of the plaintiff's right to recover. now urged by the defendant, the legality of The purpose of placing the power of appor- that increase. If, as claimed, the common tionment and taxation in the hands of a spe- council in repealing the former ordinance cial board was to protect the taxpayers from and by passing a new one establishing largunusual and unnecessary expenditures, not er salaries or compensation for the policeto cripple the different departments by de- men, acted in violation of the defendant's priving them of the means of paying the or- charter or of article 24 of the amendments dinary salaries and running expenses of their to the Constitution of the state, their acdepartments. The board of police commis- tion was void, and the increase was invalid. sioners have no power to fix the number of The construction and purpose of the twentypatrolmen in their department or the pay of fourth article of the amendments to the any of them. This power is given to the com- Constitution received the attention of this mon council. After the number is fixed the court in the recent case of McGovern v. Mitboard appoints the required number and can chell, 78 Conn, 536, 63 Atl. 433, and was there remove them only for cause, unless the num- carefully and fully considered. It is there ber is reduced by the common council. The held that it is the purpose of the article to police commissioners cannot reduce or change take from the public bodies therein mentionthe pay of the patrolmen. It clearly is not ed, including cities, the power to make grathe intention of the charter that the board tuitous compensation to public officers and of apportionment and taxation should reduce employés in addition to that which is estabthe patrolmen's pay by apportioning to the lished by law or contract, and that it does police department an insufficient sum to pro- not, either directly or by implication, take vide the compensation fixed by law. When from them the power to regulate by legislathe number and compensation of the police- tion the public services and the compensamen have been legally established, it is the tion of public officers. They may therefore |