Fine v. Conn. Co.

• Citation: 103 A. 901,92 Conn. 626
• Court: Supreme Court of Connecticut
• Decision Date: 28 May 1918
• Parties: FINE v. CONNECTICUT CO.

103 A. 901

92 Conn. 626

FINE

v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

May 28, 1918.

Appeal from Superior Court, Hartford County; John P. Kellogg, Judge.

Action by Louis Fine against the Connecticut Company. Judgment for plaintiff, and defendant appeals. Error, and new trial ordered.

Action to recover damages for injuries to the person and property of the plaintiff by a collision on the highway, which was alleged to have been caused by the negligence of the defendant, brought to the superior court in Hartford county and tried to the jury before Kellogg, J. Verdict and judgment for the plaintiff for $656, and appeal by the defendant.

Joseph F. Berry, of New Haven, for appellant. Philip Roberts and Royal W. Thompson, both of Hartford, for appellee.

PRENTICE, C. J. This case was before us upon a former occasion when the plaintiff appealed from a judgment in the defendant's favor for the reason that a defendant's verdict was directed by the court. Fine v. Conn. Co., 91 Conn. 327, 99 Atl. 700. We then held that the evidence relating to the issue as to contributory negligence, as well as that respecting the defendant's negligence, was of such a character that the plaintiff was entitled to its submission to the jury, and accordingly ordered a new trial. Upon the present trial the evidence was passed upon by the jury and adversely to the defendant. It now appeals, saying that the court erred in nob setting aside the verdict for the reason that the evidence furnished no reasonable basis for a conclusion that the plaintiff was free from contributory negligence. The evidence submitted upon the present trial does not differ in its essential features from that produced at the first. Of that evidence we said, in passing upon the appeal taken in that case, that it was such as to preclude the trial judge from saying that no conclusion thereon could reasonably be reached by the jury which would exculpate the plaintiff from the charge of negligence contributing to his injuries. We see no occasion to change our views as then expressed.

The court incorporated into its charge the following instruction:

"If you should find from the evidence in this case that the plaintiff was negligent in the manner in which he crossed, or attempted to cross, the tracks and did not use his senses when he ought to have done so, and did not keep a proper lookout for approaching cars, or you find that he was not aware of their approach; and you further find that, notwithstanding his negligence, the motorman, after the plaintiff had so placed himself in the dangerous situation that the motorman by the exercise of ordinary prudence and reasonable care could then have avoided hitting him and injuring him with his car, and did not do it, the defendant would be liable, as in that case the accident would be the result of the negligence of the motorman as an intervening cause, after the plaintiff was or ought to have been known by him to be in danger."

The defendant does not complain of this passage as containing an incorrect statement of the law. Its complaint is of the inappropriateness and misleading character of such or any similar instruction because of its plainly implied recognition that there might reasonably be found from the evidence that a situation existed in respect to which the doctrine of supervening negligence was applicable and might be invoked to the plaintiff's advantage. The burden of its grievance is that in its instruction the court went outside of the case, and imported into it an issue which had no place in it, and thereby opened a door for the plaintiff's escape from the consequences of his own negligence, which the evidence in any reasonable view of it did not permit to be open to him.

The finding is utterly barren of facts attempted to be proved by either party furnishing a reasonable basis for a conclusion that conditions existed enabling the plaintiff to invoke the aid of the doctrine of supervening negligence. It certainly could not be claimed that the defendant, subsequent to the plaintiff's exposure of himself to peril, introduced into the situation a new and independent act of negligence without which the plaintiff would not have been injured. Nehring v. Conn. Co., 86 Conn. 109, 119, 84 Atl. 301, 524, 45 L. R. A. (N. S.) 896, 902. Neither is there anything in the facts sought to be established tending to show that the defendant failed to use his best endeavors to avoid a collision subsequent to the time when the plaintiff had come into a position of danger, and the motorman knew, or ought to have known, that the plaintiff either could not reasonably escape therefrom, or apparently would not avail himself of opportunities of escape...