Carlson v. Connecticut Co.

• Decision Date: 21 February 1921
• Citation: 112 A. 646,95 Conn. 724
• Court: Connecticut Supreme Court
• Parties: CARLSON v. CONNECTICUT CO.

112 A. 646

95 Conn. 724

CARLSON v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

February 21, 1921

Appeal from Superior Court, Hartford County; Gardiner Greene, Judge.

Action by Ernest Carlson against the Connecticut Company to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. Verdict and judgment for plaintiff for $12,500, and defendant appeals. Error, and new trial ordered.

This case has already been before us on appeal from a verdict and judgment for the plaintiff, and reference is made to the former report, 94 Conn. 131, 108 A. 531, 8 A.L.R. 569, for a more complete statement of the facts. It was either undisputed or established by the answers of the jury to special interrogatories that about 11 o'clock on Saturday night, September 28, 1918, the plaintiff lay unconscious alongside the defendant's trolley track with both feet over one rail, and while in this position a car of the defendant ran over the plaintiff's legs above the ankle. The trolley tracks in the place where the plaintiff lay were within the limits of the highway, but to one side of the traveled roadway. The plaintiff's condition was more or less due to alcoholism. The car was equipped with a powerful headlight, and a constable of the town of South Windsor was riding with the motorman in the front vestibule under orders from the selectmen to keep a lookout for drunken persons who because of local conditions, were apt to be on the highway, and, incidentally, on the trolley track, late on Saturday nights.

The plaintiff claims to have proved that drunken persons in all stages of intoxication were likely to be found upon or in dangerous proximity to the trolley track in this part of the town of South Windsor on Saturday nights, and that the defendant company and its motorman had notice of that condition by past experience and by the presence of a constable on the car specially deputed to look out for such persons.

The defendant claimed to have proved that substantially all of the plaintiff's body was concealed from view by high grass and bushes, and that the failure of the motorman to observe the plaintiff was due to the plaintiff's concealed position, and not to any negligence of the motorman. On the other hand, the plaintiff claimed to have proved that an object the size of a man's body lying at the place and in the position in which the plaintiff lay was made visible to the motorman by the headlight of the car at a distance of about 150 feet; and that, at the rate of speed at which the motorman and conductor testified the car was moving, the motorman could easily have avoided the injury after the plaintiff was, by the exercise of reasonable diligence, visible.

The specifications of negligence set forth in the complaint are that the defendant company was negligent in failing to provide competent and experienced operators for the car, that the motorman was negligent in failing to observe the plaintiff in his dangerous position, and in running the car at an excessive rate of speed, and that both motorman and conductor were negligent in backing the car over the plaintiff's legs a second time without precaution or lookout. On the trial the plaintiff limited his claim of liability based on inexperience of the motorman and conductor to the claim that such inexperience was one of the elements to be considered by the jury in determining whether either of them was in fact negligent. Both the motorman and the constable testified that they were looking ahead; that the car was running at a very moderate rate of speed; that they saw nothing on or alongside of the track and had no knowledge that the car had run over anything until they felt a jolt; whereupon the car was stopped and backed down again past the place of the accident; and that it was not until they got off the car and walked along the track that they discovered the plaintiff.

John T. Robinson, of Hartford, for appellant.

Joseph P. Tuttle, Jacob Schwolsky, and Morris Blumer, all of Hartford, for appellee.

BEACH J.

The plaintiff's testimony affords no explanation of his negligent conduct in lying down beside the track with his legs over the rail except his own admission that he was more or less under the influence of the liquor he had taken. From a legal standpoint it is of no consequence whether he was drunk or sober. The important fact is that he went to sleep in that position of danger, and that his negligence in so doing is not explained away by any testimony. That being so the trial court erred in failing to instruct the jury that the plaintiff was negligent in lying down on the track, and that so long as he remained there he continued to be negligent in the passive sense that " he did not awake to his surroundings and do what he *** could to avoid the threatened consequences of a situation which he had already negligently brought about." Nehring v. Connecticut Co., 86 Conn. 109, 120, 84 A. 301, 305 (45 L.R.A. [N. S.] 896, 902).

It follows that the plaintiff was not entitled to recover in this action except by showing that his continuing passive negligence was not the proximate cause of his injury, and by showing that its real proximate cause was the supervening negligence of the defendant's servants in failing to use ordinary care to avoid injuring him after they had knowledge, actual or imputed, of his peril, and that he apparently could not or would not attempt to save himself.

The court also erred in charging the jury that they might find the defendant guilty of negligence if, under all the circumstances of the case, the speed of the car was excessive; for, as already pointed out, the only negligence of which the...