Anthony v. Conn. Co.

• Decision Date: 21 December 1914
• Citation: 92 A. 672,88 Conn. 700
• Court: Connecticut Supreme Court
• Parties: ANTHONY v. CONNECTICUT CO.

92 A. 672

88 Conn. 700

ANTHONY

v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

Dec. 21, 1914.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Ethel Anthony against the Connecticut Company for personal injuries. Judgment for defendant, and plaintiff appeals. No error.

Charles S. Hamilton and Ezra C. Terry, both of New Haven, for appellant.

Harrison T. Sheldon, of New Haven, for appellee.

RORABACK, J. The complaint stated that the cause of the collision of the runaway team with the trolley car was the negligence of the defendant, in that its agents and servants saw, or by the exercise of reasonable care might have seen, the approach of the runaway team down Columbus avenue, coming directly towards Meadow street and apparently about to cross the same into Union avenue, and while thus in danger of suffering a collision with the runaway team the defendant negligently continued up Meadow street, and propelled its car in such a way as to come directly in front of and in danger of being collided with by the runaway team, and neglected to slow down the car and have it under control, or to stop it in sufficient time to prevent a collision with the runaway team; and in that the defendant, when the danger was apparent to the passengers, failed to stop the car and allow the passengers to alight therefrom, and the passengers were unable, on account of the speed of the car and continued motion of the same, up Meadow street, to alight therefrom and protect themselves.

Counsel for the plaintiff submitted various requests to charge, and, among others, the following:

"When the plaintiff became a passenger upon the cars of the defendant and received her fare therefor, the defendant assumed the obligation to exercise the highest practicable degree of human skill to carry her in safety, undertook absolutely to protect'her against any injury or willful misconduct of its servants in the performance of its contract, and this obligation rested upon the defendant until the final termination of the passage for which she had paid. Hence, if the jury find that the defendant failed in any of these respects to carry the plaintiff safely and protect her from danger, when it might have done so by the highest practicable degree of human skill and care, the defendant is liable to the plaintiff in damages. The obligation rested upon the defendant's agent and servant to use the highest practicable degree of skill and diligence to protect passengers and to watch out for the approach of teams, runaway or otherwise, that might collide with the car, and the defendant's servant was bound to anticipate that there might be teams coming through Columbus avenue into Union avenue, and hence crossing Meadow street, to keep a vigilant lookout for such teams and see that passengers were not endangered."

The instructions given to the jury upon this point by the presiding judge were:

"A common carrier of passengers by street car is required to exercise the highest degree of care and skill which may reasonably be expected of intelligent and prudent persons engaged in that business, in view of the instrumentalities employed and the dangers naturally to be apprehended. A carrier is not an insurer of the safety of its passengers and is not bound absolutely and at all events to carry them safely and without injury. The passengers take the risk of their own negligence (there is none claimed in this case) and take the risk of dangers which could not be averted by the carrier by the exercise of the degree of care which the law requires; and on that point I will repeat what I said a moment ago, the care is the highest degree of care and skill which may reasonably be expected of an intelligent and prudent person engaged in that business, in view of the instrumentalities employed and the dangers naturally to be apprehended."

This statement as to the degree of care to be exercised by the defendant was repeatedly made by the court during its charge.

These instructions were a correct statement of the law as defined by this court.

In Ferguson v. Connecticut Co., 87 Conn. 652, 654, 89 Atl. 267, 268, it is stated that:

"The carrier must provide safe, sufficient and suitable vehicles for transportation, and must provide such servants for the management of the same, and make all reasonable arrangements therefor, as the highest care of a prudent man would suggest as necessary to a safe passage."

This doctrine was also stated in Thorson v. Groton & Stonington Street Railway Co., 85 Conn. 11, 14, 81 Atl. 1024. It was also affirmed in Kebbe v. Connecticut Co., 85 Conn. 641, 643, 84 Atl. 329, Ann. Cas. 19136, 167.

But the plaintiff insists that the law of Connecticut has been expressed to be otherwise in the case of Murray v. Lehigh Valley R. R. Co., 66 Conn. 518, 34 Atl. 507, 32 L. R. A. 539. In that case the judge in writing the majority opinion states that:

"A railroad corporation, by the contract for a passage over its road, assumes the obligation to exercise the highest practicable degree of human skill to carry the passenger in safety, and undertakes absolutely to protect him against any injury or willful misconduct of its servants in the performance of its contract; and the obligation in these respects continues until the contract is fully performed."

The court in the Murray Case was treating of two classes of injuries by a servant of a common carrier in the performance of its contract, against which the carrier undertakes to protect the passenger, viz.: (1) One arising from the negligent misconduct of the servant; and (2) one arising from the willful misconduct of the servant This is perfectly clear from a reading of the opinion and of the New York case (Dwinelle v. Railroad, 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611) upon which the court relies as its authority. The passage quoted would have better expressed the position which the opinion supports had the words "from its negligence" been inserted before "or" and after "injury." To have charged, in the language of the request, that the defendant undertook "absolutely to protect her against any injury," would in effect be stating to the jury that the defendant undertook to insure her against any injury from every possible danger. Such is not the law.

The case before us charges negligence in the defendant's agents and servants in not exercising reasonable care in the management of the trolley car, and in not keeping a proper lookout for teams approaching upon a highway...