Correnti v. Catino

• Decision Date: 21 June 1932
• Citation: 115 Conn. 213,160 A. 892
• Court: Connecticut Supreme Court
• Parties: CORRENTI v. CATINO.

160 A. 892

115 Conn. 213

CORRENTI v. CATINO.

Supreme Court of Errors of Connecticut.

June 21, 1932

Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.

Action by Frank Correnti against James Catino to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a verdict and judgment for defendant, after a trial before a jury, plaintiff appeals.

No error.

David Goldstein and John P. Flanagan, of Bridgeport, for appellant.

Lorin W. Willis, of Bridgeport, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

MALTBIE, C.J.

The plaintiff offered evidence to prove and claimed to have proved that, on a certain evening, he had been standing for some minutes upon the west sidewalk of West Main street in Stamford; that, having looked both to the right and the left without observing any approaching traffic, he proceeded to cross the street in an easterly direction; that the street was about forty feet wide and was well illuminated; that there were several automobiles standing on the further side of the street, waiting for a traffic signal at a street intersection somewhat to the north to change so that they might proceed; that the plaintiff continued to look to the right and the left as he crossed the street; that when he was about one-third the distance across he noticed to his left a bus turning into the street from the cross street; that, as the bus passed in back of him, he noticed for the first time to his right, at a distance of approximately thirty-five yards, defendant's automobile proceeding in a northerly direction toward him; that he continued to walk across the street; that, while he was still in the traveled portion of the street, the defendant, who had continued to operate his car at a fast rate of speed, ran into him; and that the defendant's lights were lighted and his view to and beyond the plaintiff was unobstructed. The defendant, on the other hand, claimed to have proved that the plaintiff ran across the highway, through the traffic and finally ran into the left front fender of his car.

The principal error claimed is the failure of the trial court upon the request of the plaintiff, to instruct the jury upon the doctrine of supervening negligence or the last clear chance. The frequency with which this doctrine is invoked, particularly where pedestrians are struck by automobiles while crossing streets, seems to require that we restate our law with reference to it, and reconsider its application in such cases. In the first place, in order to take advantage of the doctrine, the plaintiff must insert in his complaint allegations affording a basis for a finding of the negligent conduct upon which he bases his claim of liability under the doctrine. Mezzi v. Taylor, 99 Conn. 1, 10, 120 A. 871; Annes v. Connecticut Co., 107 Conn. 126, 129, 139 A. 511; Tardieu v. Connecticut Co., 113 Conn. 94, 95, 154 A. 173. But, even if he has done this, the trial court need not consider the doctrine or charge the jury with reference to it, unless his purpose to invoke it as an issue in the case is evidenced either by a definite reference to it in the complaint or by claiming it to the court upon the trial, preferably in a jury case by a request to charge. Mezzi v. Taylor, supra; Russell v. Vergason, 95 Conn. 431, 434, 111 A. 625; Schmeiske v. Laubin, 109 Conn. 206, 211, 145 A. 890; Zenuk v. Johnson, 114 Conn. 383, 158 A. 910. It is also to be remembered that the application of the doctrine presupposes that the plaintiff has been guilty of negligence. Carbone v. Krott, 100 Conn. 414, 123 A. 903; Notarfrancesco v. Smith, 105 Conn. 49, 57, 134 A. 151. If upon the evidence the only claims of proof reasonably open to acceptance are that the plaintiff was free from negligence or that he was negligent and his negligence continued to the time of the injury and was an efficient cause of it, there is no place in the case for the application of the doctrine. Radwick v. Goldstein, 90 Conn. 701, 710, 98 A. 583; Lukosevicia v. Bartow, 99 Conn. 723, 122 A. 709; Rooney v. Levinson, 95 Conn. 466. 468, 111 A. 794; Notarfrancesco v. Smith, 105 Conn. 49, 55, 134 A. 151. But the plaintiff may claim its application if the evidence affords a reasonable ground for finding the necessary facts, though this evidence be in part that offered by the defendant. The burden of proving the necessary facts to establish the elements justifying the application of the doctrine is upon the plaintiff. Plona v. Connecticut Co., 101 Conn. 445, 448, 126 A. 529; and, if he fails to afford a reasonable basis for finding each and all of these elements to have existed, the doctrine may not be applied, Petrillo v. Connecticut Co., 92 Conn. 235, 236, 102 A. 607; Curtis v. Bristol & Plainville Electric Co., 102 Conn. 238, 128 A. 517; Oddwyez v. Connecticut Co., 108 Conn. 71, 142 A. 406; Budaj v. Connecticut Co., 108 Conn. 474, 476, 143 A. 527.

The conditions necessary for the application of the doctrine are stated in Fine v. Connecticut Co., 92 Conn. 626, 631, 103 A. 901, 902, as follows: " Situations coming within the operation of the principles attempted to be stated by the court are those in which four conditions coexist, to wit: (1) That the injured party has already come into a position of peril; (2) that the injuring party then or thereafter becomes, or in the exercise of ordinary prudence ought to have become, aware not only of that fact, but also that the party in peril either reasonably cannot escape from it, or apparently will not avail himself of opportunities open to him for doing so; (3) that the injuring party subsequently has the opportunity by the exercise of reasonable care to save the other from harm; and (4) that he fails to exercise such care." See, also, Rooney v. Levinson, 95 Conn. 466, 468, 111 A. 794; Richard v. New York, N.H. & H. R. Co., 194 Conn. 229, 235, 132 A. 451; Sacks v. Connecticut Co., 109 Conn. 221, 223, 146 A. 494. ‘ The word subsequently,’ as used in the third condition, obviously means subsequent to the acquisition of the knowledge referred to in condition 2, or to the time when that knowledge ought, in the exercise of due care, to have been obtained." Tullock v. Connecticut Co., 94 Conn. 201, 207, 108 A. 556, 559.

Any consideration of the nature of the doctrine must start with the case of Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 301, 524, 45 L.R.A. (N. S.) 896, 902, where Judgment Prentice discussed it at length in the light of the various situations in which it might be invoked. He draws a clear distinction (page 120 of 86 Conn., 84 A. 301, 305, 524) between those situations where the doctrine is applicable and those where it is not, based upon a determination whether the plaintiff, though he came into a position of peril by reason of his own negligence, has done " nothing to create or materially change that situation by active conduct which was not marked by reasonable care" and is merely " passively permitting an already fixed condition to remain unchanged" or " is by acts of his volition bringing into the situation which confronts the defendant changed conditions, and in the fullest sense co-operating with the latter in bringing about the ultimate result." He then discusses the situation where it is reasonably apparent to one who inflicts the injury that the injured person is careless of his safety and that in continuance of his carelessness he is about to place himself in a position of danger, which he subsequently does, and where the former thereafter, having a reasonable opportunity to save him from injury, fails to do so. In such a situation the opinion holds that the doctrine is not applicable, because the plaintiff's want of care is a substantial factor in bringing about the injury. " Upon what theory or foundation in reason it can be said that, under the circumstances assumed, it is not an efficient cause of that result co-operating concurrently with the other cause to be found in the other party's negligence, we are unable to discover. The causal connection is plain to be seen, and the act of causation is that of a positive act of volition. The two actors upon the scene owe precisely the same duty to be reasonably careful. *** Neither occupies in that regard a superior position, and the one who suffers can claim no precedence over his fellow actor or at the hands of the law. To say that no matter if one be negligent in going forward into danger, or in creating new conditions or complicating them, the law will protect him and cast upon the other party the responsibility for the result, is to ignore the fundamental principle of contributory negligence, and bring the law upon that subject into hopeless confusion, and merit for it the condemnation which Thompson has so forcibly expressed."

A series of later cases served to develop the basic distinction which runs through the discussion in the Nehring case, between those situations where by his negligence the plaintiff has placed himself in a position of peril, but thereafter has been guilty of no negligent conduct which materially changed the conditions confronting the defendant, and those where the negligence of the plaintiff continues as an efficient and substantial factor down to the injury and directly contributes to produce it. Hygienic Ice Co. v. Connecticut Co., 90 Conn. 21, 96 A. 152; Radwick v. Goldstein, supra; Fine v. Connecticut Co., supra; Tullock v. Connecticut Co., 94 Conn. 201, 207, 108 A. 556; Pattenden v. Connecticut Co., 98 Conn. 370, 119 A. 348; Deutsch v. Connecticut Co., 98 Conn. 482, 119 A. 891. The distinction is perhaps best explained in Bujnak v. Connecticut Co., 94 Conn. 468, 109 A. 244, 245, a case where the plaintiff offered evidence to prove...