Corey v. Phillips

Decision Date14 December 1939
CourtConnecticut Supreme Court
PartiesCOREY v. PHILLIPS et al. (three cases). WOLFE v. PHILLIPS et al.

Reargument Denied Feb. 7, 1940.

Appeal from Superior Court, Hartford County; Edward J. Quinlan Judge.

Actions to recover damages for personal injuries, alleged to have been caused by the negligence of the defendants, by George Corey, Frances Corey, Priscilla Corey, and Larry Wolfe respectively, against Lloyd W. Phillips, Rogers & Hubbard Company, and others. Verdict and judgment for the plaintiff in each case, and defendants appeal.

Error on appeal of the defendant Phillips, and new trial ordered no error on the appeal of the defendant Rogers & Hubbard Company.

Josiah H. Peck and Charles H. Blackall, both of Hartford, for appellant Rogers & Hubbard Co.

DeLancey Pelgrift and M. J. Blumenfeld, both of Hartford, for appellant Lloyd D. W. Phillips.

Robert P. Butler, Harold W. Garrity, and Paul Volpe, all of Hartford, for appellees.

Argued before MALTBIE, C.J., and HINMAN, AVERY, and BROWN, JJ.

BROWN Judge.

These four cases, arising out of the same accident, were tried together to the jury upon identical issues except as to damages. In their appeals in each case the defendants claim that the court erred in charging the jury, and in denying their motions to set aside the verdict. Under the claims of proof of the parties, the following facts are substantially undisputed. The plaintiff George Corey at 2 p. m. on January 5, 1938, was driving his Dodge sedan easterly on the state highway in Chaplin, with the other three plaintiffs as passengers. The defendant Phillips, by Wilfred Paquette as his agent, was driving a Terraplane sedan following behind the Corey car. Without giving any signal he had started to turn out to overtake and pass it on the left when, as he came abreast of its rear, he saw the Ford truck of the Rogers & Hubbard Company, driven by its agent Theodore Cote, approaching from the opposite direction. Paquette took his foot off the accelerator and without applying his brakes attempted to turn in behind the Corey car, but he failed to allow sufficient time or distance to clear and his front right bumper interlocked with the rear left bumper of the Corey car, which was traveling at about thirty miles per hour. The two cars proceeded about fifty feet with bumpers engaged and the Phillips car approximately astride the center line of the road. The Corey car then skidded sideways and at a point about one hundred feet from where the bumpers first interlocked, headed southwesterly across the highway with its rear right corner extending about four feet to the north of the white center traffic line.

Cote first noticed the two cars in trouble when about two hundred feet away, as his truck was proceeding on his right side of the road at about thirty miles an hour, at a point about one hundred feet east of where it ultimately collided with the Corey car located as already described. Cote at the point mentioned applied his brakes and slowed down, but did not bring the truck to a stop until it had traveled one hundred feet, although by a full application of his brakes he could have stopped it within fifty or sixty feet. The left front corner of the truck's platform body was in collision with the right rear corner of the body of the Corey car, and by the force of the impact the plaintiffs, who were all exercising due care, were injured. The highway was hard surfaced, dry and twenty-six feet wide, with one to two feet of hard shoulder on the north side, at the foot of a bank six feet high. There was unobstructed vision for a substantial distance both to the east and west of the place of accident. Outside of these facts, which are not in dispute, the plaintiffs' and defendant Phillips' claims of proof were that the Corey car had come to a full stop and that subsequently the truck ran into it; and that Cote, after seeing the two cars in trouble, could have made a full application of his brakes and brought the truck to a stop before it collided with the Corey car. The plaintiffs further claimed that Cote could have turned the truck to his right and avoided the collision. The defendant company's claims of proof were that its truck had come to a full stop and that thereafter the rear of the skidding Corey car swung into it; that Cote applied his brakes and brought the truck to a full stop within a reasonable distance; and that Cote did turn the truck as far to his right as was possible.

In the words of its brief, the defendant company's attack upon the charge is that the court erred ‘ in charging the jury that the last clear chance doctrine had no application; and in failing to charge the jury that this defendant was not liable in the absence of proof, that this defendant became actually or constructively aware of the plaintiff's peril and that the plaintiff could or would not escape from it in time to enable the defendant to take action to avert the collision.’ While the plaintiff's complaint in each case contained sufficient allegations to permit a recovery against the defendant company under the last clear chance rule, the finding makes clear that there were no claims of proof sufficient to support it, and that neither the plaintiff nor the defendant Phillips made any claim under it. The court was therefore correct in telling the jury, after reciting the allegations relating to it in the complaints, that the doctrine had no application. Furthermore, the purpose and effect of this doctrine, which is solely for the plaintiff's benefit, being limited to eliminating antecedent negligence of the plaintiff as a bar to recovery where it has been superseded by the defendant's subsequent negligence, this defendant could in no event complain that the court excluded it from the jury's consideration. The first criticism is without merit.

Its second criticism is predicated on the theory that this defendant was entitled to a charge that if the plaintiffs had already come into a position of peril, it could not be found negligent unless Cote, its driver, then or thereafter became, ‘ 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 could not escape from it or apparently would not avail himself of opportunities open to him for doing so.’ This is the second element of the last clear chance rule. Fine v. Connecticut Co., 92 Conn. 626, 631, 103 A. 901; Caplan v. Arndt, 123 Conn. 585, 588, 196 A. 631, 119 A.L.R. 1037. More specifically, the contention is that the court in discussing its claim that the emergency confronting its driver afforded an excuse for his failure to avoid the collision, having stated that this excuse could not avail one whose negligence had created the emergency, erred in charging, ‘ So that, if he [Cote] saw the cars in difficulty and reasonable care required that he should have came to a stop at once,’ failure to do this would constitute negligence. The claim is that this amounted to a statement of the last clear chance rule with its second element left out and that a statement of the essentials of this element should have been substituted for the general test of ‘ reasonable care’ stated by the court, which afforded no adequate guide to the jury for determining whether this defendant was negligent. The defendant's criticism is unsound and is apparently predicated upon a failure to distinguish between a case where the doctrine of last clear chance is properly applicable to test a plaintiff's right of recovery, and the present case where it is not. To satisfy its first condition and render the rule applicable, the plaintiff must not only have ‘ come into a position of peril,’ but must have done so through his own negligence. Nehring v. Connecticut Co., 86 Conn. 109, 116, 84 A. 301,84 A. 524, 45 L.R.A.N.S., 896. Thereupon it becomes necessary to ascertain whether the three remaining elements coexist, not for determining whether the defendant has been negligent, but for determining whether this negligence has superseded that of the plaintiff and eliminated it as contributory negligence barring recovery. It being...

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