Dickerson v. Connecticut Co.

• Court: Connecticut Supreme Court
• Writing for the Court: WHEELER, C.J.
• Citation: Dickerson v. Connecticut Co., 98 Conn. 87, 118 A. 518 (Conn. 1922)
• Decision Date: 18 October 1922
• Parties: DICKERSON v. CONNECTICUT CO. et al.

118 A. 518

98 Conn. 87

DICKERSON v. CONNECTICUT CO. et al.

Supreme Court of Errors of Connecticut.

October 18, 1922

Appeal from Superior Court, Hartford County; William M. Maltbie Judge.

Action by Florence L' H. Dickerson against the Connecticut Company and others to recover damages for personal injuries alleged to have been caused by the negligence of each defendant. Verdict and judgment for the plaintiff for $9,000 against the defendant Frank Dickerson and in favor of the defendant Connecticut Company, from which the former defendant appealed. No error.

Edward L. Smith and Allan K. Smith, both of Hartford, for appellant.

Walter S. Schutz and Ufa E. Guthrie, both of Hartford, for appellee Florence L' H. Dickerson.

Joseph F. Berry, of Hartford, for appellee Connecticut Co.

WHEELER, C.J.

The plaintiff offered evidence to prove that she was injured while riding as a guest in the automobile of the defendant Dickerson, in consequence of his negligence in the operation of the automobile and while she was in the exercise of due care. The jury rendered its verdict for the plaintiff against the defendant Dickerson.

The appeal assigns error in two points in the charge. The first assignment of error, being the only one pursued in the brief of the defendant, questions this portion of the charge:

" Coming now to Mr. Dickerson, he was the driver of this car, and the father-in-law, I think, of Mrs. Dickerson, the plaintiff. The duty which he owed to Mrs. Dickerson, riding as his guest in that car, was also to exercise reasonable care to see that no injury came to her, the care that an ordinarily prudent person would exercise situated as he was situated in driving that car, to avoid any injury to her. The ‘ active negligence’ which Mr Smith spoke of in his argument as being the test, in some sort, of the duty resting upon Mr. Dickerson, means no more than did he, in the operation of the car, do or fail to do anything which a reasonably prudent person would not have done, or would have done in order to avoid injury to her; it is the same test applied to the driver of the automobile instead of to the driver of the trolley car. Did he use the care of an ordinarily prudent person, situated as he was situated, to avoid the result which followed?"

The defendant complains of this excerpt from the charge as holding that the defendant owner and operator of the automobile owed the same duty to the plaintiff, who was a guest, that he owed to the world in general, and as making no distinction between the gratuitous carrying of the plaintiff and the carrying of one for hire; whereas, as he insists, the true rule enforces liability for injury to a guest only for active negligence toward the guest, which involves something more than the failure to exercise ordinary care, and involves the presence of some conduct upon defendant's part which constitutes gross negligence, which is the failure to even use a slight degree of care toward the guest.

In chief support of his position the defendant cites the late Massachusetts case of Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A. 1918C, 264, Ann.Cas. 1918B, 1088, which adopts this rule of duty toward the guest, although terming the negligence which would support a liability gross negligence, instead of active negligence. Such a rule requires the adoption of the classification of negligence made by Lord Holt in Coggs v. Bernard, 2 Ld. Raym. 909, into slight, ordinary, and gross. The current of authority has, with practical unanimity, discarded this classification, and concluded that " such refinements can have no useful place in the practical administration of justice." We have never attempted to make this division of degrees of care; on the contrary, we have expressly disapproved of it. The three degrees cannot be distinguished so as to make this classification a practical one. Their use must result in confusion and uncertainty. Griswold v. New York & N.E. R. Co., 53 Conn. 371, 390, 4 A. 261, 55 Am.Rep. 115; Lord v. Lamonte, 72 Conn. 37, 38, 43 A. 491. Other jurisdictions as a rule have either disapproved of it or refused to adopt it. Steamboat New World v. King, 57 U.S. (16 How.) 469, 474, 14 L.Ed. 1019; Milwaukee & St. P. Ry. Co. v. Arms, 91 U.S. 489, 494, 23 L.Ed. 374; New York Central R. Co. v. Lockwood, 84 U.S. (17 Wall.) 357, 382, 21 L.Ed. 627; Avery v. Thompson, 117 Me. 120, 103 A. 4, L.R.A. 1918D, 205, Ann.Cas. 1918E, 1122; Wilson v. Brett, 11 M. & W. 113; Beal v. South Devon Ry., 3 H. & C. 337.

The guest on entering the automobile takes it and the driver as they then are, and accepts the dangers incident to that mode of conveyance. If the driver be intoxicated, or the automobile be defective, and the owner does not then know this, and injury result to the guest in consequence, the owner of the automobile is not liable to him. If the driver becomes intoxicated after the gratuitous transportation has begun, or the defect in the automobile was one which the owner knew about and failed to inform the guest of, he exposed the guest to a new danger in the first instance, and in the second he was injured in consequence of the failure of the owner to exercise toward him ordinary care and inform him as to the defect. Not to do so would be a clear failure on the part of the owner to use reasonable care toward his guest. Pomponio v. New York, N.H. & H. R. Co., 66 Conn. 528, 537, 34 A. 491, 32 L.R.A. 530, 50 Am.St.Rep. 524. When the journey has begun, the owner's duty is to so operate the car that no new danger to the guest is created, and no increase is in the danger from this mode of transportation is incurred by him. If the owner increases the danger, or creates a new danger by the manner in which he operates the automobile, he has not exercised toward his guest reasonable care. This would follow if he operated the car at an unreasonable speed, or in violation of some law or municipal ordinance or regulation, or without having the car under reasonable control, or without keeping a proper lookout, and in consequence of his conduct an accident resulted in which the guest was injured. The Massachusetts doctrine would make the owner liable to the guest only in a case where he has exercised slight care, where the situation required the exercise of so much care that the owner's neglect has been such as to constitute gross negligence. Under such a doctrine the jury must have before them three standards to understand, to apply, and to chose from. Under our standard the jury inquire whether the owner has exercised due care in the circumstances presented to him, and they determine this by asking what the reasonably prudent person would have done similarly circumstanced, and if the owner's conduct has not measured up to this standard he has not exercised due or ordinary care. That standard is simple and unvarying. As the danger increases, the care must increase, for the reasonably prudent man would so act in a similar situation.

In Pigeon v. Lane, 80 Conn. 237, 241, 67 A. 886, 11 Ann.Cas. 371, we said the owner would only be liable to his guest or licensee for his active negligence. We were...