Dokus v. Palmer

• Decision Date: 07 July 1943
• Citation: 130 Conn. 247,33 A.2d 315
• Court: Connecticut Supreme Court
• Parties: DOKUS v. PALMER et al.

130 Conn. 247

33 A.2d 315

DOKUS

v.PALMER et al.

Supreme Court of Errors of Connecticut.

July 7, 1943.

COPYRIGHT MATERIAL OMITTED.

Appeal from Superior Court, Fairfield County; Daly, Judge.

Action by Stephen Dokus, administrator of the estate of James Sandor, against Howard S. Palmer and others, trustees of the New York, New Haven & Hartford Railroad Company to recover damages for the death of plaintiff's intestate who was killed when he stepped off the steps of defendants' train. There were a verdict and judgment for plaintiff, and the defendants appeal.

No error.

Edwin H. Hall, of New Haven (James W. Grady, of New Haven, on the brief), for appellants (defendants).

John Keogh, Jr., of South Norwalk (John Keogh and William O. Keene, both of South Norwalk, on the brief), for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

DICKENSON, Judge.

The plaintiff's intestate, Sandor, stepped off the steps of the defendants' train when the train was approaching a station at a speed of about forth miles an hour and was killed. The plaintiff brought this action, setting up, in a first count, intoxication of Sandor to the knowledge of the defendants, and their negligence thereafter in announcing the station, opening the door and failing properly to protect Sandor, and, in the second count, negligence of the same character in operating the train without reference to the intoxication of Sandor. The defendants denied these allegations and alleged contributory negligence as a defense to both counts. The jury returned a general verdict for the plaintiff. The defendants moved to set this aside as against the law and the evidence. The trial court denied the motion and the defendants appealed to this court from this denial and from the judgment, claiming error in the charge.

The jury might have found from the evidence that Sandor boarded a train of the defendants at South Norwalk at about 6 p. m. on June 1, 1942, and traveled thereon to Bridgeport, a distance of about fifteen miles; that he was seen by the defendants' head trainman, Shofkom, to have been drinking at that time; that Sandor boarded a train at 11:30 p. m. at Bridgeport to return to South Norwalk; that he was seen by Shofkom at that time to be very intoxicated; that it was the duty of a trainman to report to the conductor if a man so intoxicated as to be incapable of looking out for his own safety got aboard the train; that the train made but one stop between Bridgeport and South Norwalk, and as it approached South Norwalk and was about one and one-half miles from it a trainman announced the station; that about three-quarters of a mile from the station a trainman opened the trap door covering the steps leading from the car in which Sandor was riding; that Sandor left his seat, walked down the aisle into the vestibule, grasped the stair rail, descended the stairs and stepped off into space. There was no manifestation of intoxication while Sandor was on the train. The defendants claim that there was not sufficient evidence that Sandor was incapacitated by intoxication to require special care of him on their part, that they were not negligent otherwise and that he was guilty of contributory negligence as a matter of law.

The duty of the defendants as a common carrier of persons was ‘to use the utmost care consistent with the nature of its business to guard its passengers against all dangers which might reasonably and naturally be expected to occur, in view of all the circumstances.’ Robinson v. Connecticut Co., 122 Conn. 300, 301, 189 A. 453. A common carrier, having upon its train a passenger who is so intoxicated as not to be able to look out for his own safety, when it knows or in the exercise of reasonable care should know his condition, is bound to exercise a degree of care for his protection commensurate with his inability to guard himself from danger. Fagan v. Atlantic Coast Line R. Co., 220 N.Y. 301, 307, 115 N.E. 704, L.R.A.1917E, 663; Wheeler v. Grand Trunk Ry. Co., 70 N.H. 607, 613, 50 A. 103, 54 L.R.A. 955; Price v. St. Louis, I. M. & S. Ry. Co., 75 Ark. 479, 490, 88 S.W. 575, 112 Am.St.Rep. 79; Sullivan v. Seattle Electric Co., 44 Wash. 53, 61, 86 P. 786; 2 Moore, Carriers, 2d Ed., p. 1195. The rule imposing the duty is the same rule which applies wherever a passenger is for any reason not capable of self-protection, to the knowledge, actual or constructive, of the carrier. Warren v. Pittsburgh & B. Ry. Co., 243 Pa. 15, 19, 89 A. 828; Thompson, Carriers of Passengers, p. 271; 1 Beven, Negligence, 4th Ed., p. 178. One of the most usual examples is that of a young child traveling alone; of such a situation, we have said: ‘The care to be exercised toward a young child traveling by himself must be proportioned to the degree of danger inherent in his youth and inexperience.’

Roden v. Connecticut Co., 113 Conn. 408, 410, 155 A. 721, 722.

The standard of care which a person is ordinarily required to exercise to guard his own safety is that of a reasonably prudent man; it is ‘an external standard, and takes no account of the personal equation of the man concerned.’ Marfyak v. New England Transportation Co., 120 Conn. 46, 48, 179 A. 9, 10, quoting The Germanic, 196 U.S. 589, 596, 25 S.Ct. 317, 49 L.Ed. 610. Intoxication is not in itself negligence, but it does not, at least where the intoxicated person has not completely lost the use of his faculties, excuse the failure to exercise the care which a reasonably prudent person would use; in fact, its existence may strengthen the probability of negligence. Zenuk v. Johnson, 114 Conn. 383, 388, 158 A. 910; Kupchunos v. Connecticut Co., 129 Conn. 160, 163, 26 A.2d 775. It would be difficult to absolve the deceased from the charge that he was guilty of negligence as matter of law in stepping off a train moving as rapidly as was the one involved in this case. Brown v. New York, N. H. & H. R. Co., 181 Mass. 365, 367, 63 N.E. 941; Morrison v. Erie Ry. Co., 56 N.Y. 302; Elliott, Railroads, 3d Ed., § 2472. The circumstances before us, however, are such that his negligence in so doing will not defeat a recovery by the plaintiff. This is not because, as in Hoyt v. New York, N. H. & H. R. Co., 78 Conn. 709, 712, 63 A. 393, the negligence of the defendant was such as to make the conduct of the deceased a remote cause in the usual meaning of that term, for in the instant case his death was directly and immediately due to his own act in walking down the steps and off the train. The reason why his want of care will not defeat a recovery is that the jury could not reasonably have found otherwise than that his conduct was due to the very condition against the dangers of which it was the duty of the defendants to guard him. This appears to have been the basis of the opinion in Wheeler v. Grand Trunk Ry. Co., supra, 70 N.H. page 620, 50 A. page 107, 54 L.R.A. 955, as we understand it, for the court said: ‘Leaving out of sight the immaterial fact of the cause of the plaintiff's incapacity, the question is whether a jury may not find that in the exercise of the care in transportation required of them a railroad corporation, knowing that a passenger is in a dangerous position,-the danger of which he does not know, and which they know he is ignorant of and powerless to avoid,-are under obligation to do something to prevent the injury. To this question there can be but one answer upon reason and the authorities.’ The principle is the same as that stated in the Restatement, 2 Torts, § 443: ‘An intervening act of a...