Hurley v. Connecticut Co.

• Decision Date: 03 April 1934
• Court: Connecticut Supreme Court
• Parties: HURLEY v. CONNECTICUT CO.

172 A. 86

118 Conn. 276

HURLEY v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

April 3, 1934

Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.

Action by William F. Hurley against the Connecticut Company for damages alleged to have been caused by defendant's negligence. From a judgment entered on a jury's verdict for plaintiff after denying a motion to set it aside defendant appeals.

Error and new trial ordered.

Mere fact that motorman's report to street railway company immediately after accident was made for purpose of preparing against possible future litigation did not render it privileged communication between attorney and client within rule protecting latter from disclosure of such communications.

Edwin H. Hall, of New Haven, and Walter A. Mulvihill, of New York City, for appellant.

George J. Grady and Edward L. Reynolds, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, Judge.

The plaintiff was struck by the defendant's trolley car on the evening of January 6, 1932, about 11:30, near the intersection of Portsea and Christopher streets in the city of New Haven. He alleged that he was proceeding from the railroad station to his home, walking westerly on the north sidewalk of Port sea street until he reached Christopher street, which intersects Portsea street from the north but does not cross it; that there was a heavy fog; that it was raining very hard and a strong wind was blowing from the south; that he decided to turn south on the crosswalk across Portsea street to the shelter of the buildings on the south side of that street, and, while thus crossing with due care, was struck by a trolley car of the defendant which was moving west on Portsea street and approaching Christopher street. He further alleged that the motorman was negligent in several respects. The defendant admitted that the plaintiff was injured by its trolley car, but claimed that he was struck at a point 150 to 175 feet west of Christopher street; that he was lying on the rails in an intoxicated condition, and was first seen by the motorman about 10 feet away and too late to enable him to stop his car. The trial resulted in a verdict for the plaintiff, which the defendant moved to set aside as excessive and against the law and the evidence. The trial court overruled the motion, and this is one of the assigned errors.

The finding shows the plaintiff's evidence to have been, in substance, that the trolley rails were in the approximate center of Portsea street; the width of that street being 23 feet 10 inches from curb to curb. A large van or truck, 8 to 10 feet in width, was parked within a foot of the north curb of Portsea street and 10 to 15 feet from the east curb of Christopher street, and back of it stood two automobiles, one behind the other. The trolley car in question was a one-man car operated by, and in charge of, a motorman.

The plaintiff offered evidence that, as he reached the corner and decided to cross, he looked to the east and saw no traffic, and then moved about 5 or 6 feet onto the crosswalk into Portsea street, and was within less than three steps of the trolley rail, when, again looking to the east, he could see about 25 feet along the tracks, but neither heard nor saw any approaching traffic. Looking again to the west to observe the headlights of an approaching automobile, he decided he had ample time to cross. Then looking again to the east, he saw the approaching trolley car for the first time, and about 5 to 10 feet away. He was then midway between the rails, and, though he tried to avoid it, he was struck by the front end of the car and dragged a considerable distance and pinned under the car. He offered evidence that the motorman failed to sound any bell or give other warning of his approach to the crosswalk; that at the moment before the collision the motorman was not looking in the direction the car was moving, but was turned to the north extracting coins from the coin box; that the speed of the car was not slackened; that the motorman did not use his brake or reverse lever; and that he failed to drop the fender before striking the plaintiff.

The defendant's evidence, as already indicated, was that the accident occurred in the next block, and that the plaintiff was not on a crosswalk but lying on the rails intoxicated, 10 feet ahead of the car when the motorman first saw him; that the car was then moving 12 miles an hour, and the motorman made an emergency stop, but that the car traveled about 25 feet before stopping.

Of the fifteen assignments of error, one which is strongly urged by the defendant is with respect to that part of the charge dealing with contributory negligence. The defendant contended that the plaintiff was lying prone upon the rails in an intoxicated condition when he was struck by the car, and that it was entitled to have the jury instructed that, if they found in accordance with that claim of fact, the plaintiff was guilty of contributory negligence as matter of law. However, the court charged the jury as follows: " In connection with the claim of the defendant in so far as it relates to the claimed presence of the plaintiff upon the tracks in a prone position, I will charge you that if you find that the plaintiff was in fact, lying across the tracks before he was struck by the defendant's car under the circumstances and conditions as claimed by the defendant, and that such position was due to an act of the plaintiff's own volition, his conduct in thus acting might well be found to have been negligent, and so long as he remained in such position under such circumstances, it might also be found that he continued to be negligent in the passive sense, in that he did not awake to his surroundings and do what he could do to avoid the threatened consequences of a situation which he had negligently brought about. Under these circumstances, then, the plaintiff would not be entitled to recover for injuries received while he was thus occupying a position he had negligently assumed, except by showing that his continuing passive negligence was not the proximate cause of his injury, and by showing that the supervening negligence of the defendant motorman in failing to use ordinary care to avoid injuring him, after the motorman had knowledge, actual or imputed, of his peril, and that he apparently could not or would not attempt to save himself." A little later in the charge, the subject was thus referred to: " You will also consider this claim of the defendant in connection with its claim that the conduct of the plaintiff in lying upon the tracks constituted contributory negligence on his part, and if you find that the plaintiff was in fact lying upon the tracks, you will then determine whether such conduct under the circumstances as you find to have existed,...