Kinderavich v. Palmer

• Decision Date: 13 June 1940
• Citation: 15 A.2d 83,127 Conn. 85
• Court: Connecticut Supreme Court
• Parties: KINDERAVICH v. PALMER et al.

15 A.2d 83

127 Conn. 85

KINDERAVICH v. PALMER et al.

Supreme Court of Errors of Connecticut.

June 13, 1940

Appeal from Superior Court, New Haven County; Patrick B O'Sullivan, Judge.

Action by William Kinderavich against Howard S. Palmer and others for personal injuries allegedly caused by defendants' negligence, brought in superior court and tried to the jury. From a decision setting aside a verdict for defendants defendants appeal.

No error.

Edwin H. Hall, of Bridgeport, and James W. Grady, of New Haven, for appellants.

William H. Burland and Meyer L. Kravitz, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

MALTBIE, Chief Justice.

The plaintiff brought this action to recover for injuries suffered when he was run over by a train of the railroad company represented by the defendant trustees. The finding states that he offered evidence to prove and claimed to have proved that at the place of the accident the railroad is double tracked; that he was proceeding over the tracks at a crossing; that he had passed over the westbound track and was thereafter struck by a train of the defendants on the eastbound track; that he was thrown backward and landed between the rails on the westbound track at a point thirteen feet east of the crossing; that he lay there in an unconscious condition for approximately twelve minutes on his back; and that as he lay there a train of the defendant's on the westbound track ran over him, severing his left arm at the shoulder. The defendants claim that there was no evidence upon the basis of which the plaintiff could reasonably claim to have proved that after being struck by the first train he lay on the track in an unconscious condition until run over by the second train, and also that photographs in evidence of the engine of that train establish that it could not have run over him and caused injuries only to the extent of those he suffered. No eyewitness of the accident testified in court and the defendants do not claim that there was not evidence from which it could reasonably be found that the plaintiff was unconscious after being struck by the first train. It is to be remembered that under such circumstances as the evidence disclosed to exist here, the jury were entitled to draw any reasonable inference from the facts in evidence. Kotler v. Lalley, 112 Conn. 86, 90, 151 A. 433; Peterson v. Meehan, 116 Conn. 150, 153, 163 A. 757; Dumochel v. Becce, 119 Conn. 175, 177, 175 A. 569. The position of the plaintiff's body after the accident lying on its back between the rails of the track with the left arm over one rail and, as one witness testified, ‘ crushed’ to it, would in itself justify the jury in inferring that he was lying on the track as he claimed when run over by the second train and was not, as the alternative suggested by the defendants, struck while he was wandering about in a dazed condition; and the photographs of the engine in evidence cannot be held as matter of law to establish that this was not so in the absence of any direct testimony as to the height of its cowcatcher above the bed of the track and the thickness of the plaintiff's body.

The jury returned a verdict for the defendants which the trial court set aside because it was of the opinion that it had erred in its charge to the jury. It instructed them quite fully upon the issue of contributory negligence by the plaintiff and then charged them that if he was guilty of contributory negligence this ‘ would extend right through and bar a recovery.’ If the plaintiff was rendered unconscious when he was struck by the first train, that contributory negligence would have to do with conduct on his part which contributed to the first accident. The effect of the charge was that if the plaintiff was guilty of such contributory negligence it would, as matter of law, prevent him from recovering for the injuries suffered when he was run over by the second train. The trial court, in its memorandum of decision setting the verdict aside, stated that it was then of the opinion that even though the jury found that the negligence of the plaintiff was a contributing cause of the first accident, whether that negligence was such as would bar him from a recovery for the injuries suffered when he was run over by the second train was a question of fact for their determination; and that they might have found that this negligence was not a proximate cause of his being run over. The defendants, on the other hand, claim that the charge as given was correct; and that in such a situation as disclosed in this case the only way in which the plaintiff could recover in view of his negligence as regards the first accident would be under the doctrine of last clear chance. The contrasting views of the trial court and the defendants and the scope of the argument before us suggest the desirability of restating, to some extent, the doctrine of proximate cause as it is applied to the negligence of a plaintiff.

The term ‘ proximate cause’ has not always been used with precision of meaning in our decisions. Sometimes we have stated that particular conduct claimed to be negligent was not the proximate cause of injuries when in fact it was not a cause at all, proximate or remote, where it had ‘ no real connection’ with the injuries suffered. Delinks v. New York, N.H. & H. R. Co., 85 Conn. 102, 111, 81 A. 1036. Thus in Radwick v. Goldstein, 90 Conn. 701, 708, 98 A. 583, the fact that the driver of an automobile violated a statute limiting speed in passing a street railway car, in the absence of some further evidence establishing a connection between that act and his running into a boy on a bicycle at a point some distance beyond the railway car, was held not to be of any consequence in determining liability. See, also, Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370, L.R.A. 1915E, 959. In Grzys v. Connecticut Co., 123 Conn. 605, 611, 198 A. 259, it was held that a violation of a regulation of the public utilities commission as to the maximum permissible width of buses was of no consequence where the excess width played no part in producing the accident or consequent injuries. See, also, Guilfoile v. Smith, 95 Conn. 442, 444, 111 A. 593. Within the same category, also, fall those situations where the accident resulting in the injury would have happened whether or not the act or omission in question had occurred. Shaughnessy v. Morrison, 116 Conn. 661, 666, 165 A. 553; Papineau v. Hefflon, 118 Conn. 688, 689, 171 A. 509; Baum v. Atkinson, 125 Conn. 72, 75, 3 A.2d 305. Again we have used the words in relation to a situation where the plaintiff was not guilty of contributory negligence at all, as where he fell upon a street railway track by reason of incapacity resulting from a cerebral thrombosis. King v. Connecticut Co., 110 Conn. 615, 617, 149 A. 219. So, too, they have been used with reference to conduct which might have been negligent in regard to a certain hazard but was not negligent with reference to the particular risk which resulted in the injury. See Hinch v. Elliott, 119 Conn. 207, 209, 175 A. 684; Kryger v. Panaszy, 123 Conn. 353, 358, 195 A. 795; Hassett v. Palmer, 126 Conn. 468, 477, 12 A.2d 646. Within this class we have placed the cases of Smithwick v. Hall & Upson Co., 59 Conn. 261, 269, 21 A. 924,12 L.R.A. 279, 21 Am.St.Rep. 104, and Montambault v. Waterbury & Milldale Tramway Co., 98 Conn. 584, 589, 120 A. 145. Worden v. Anthony, 101 Conn. 579, 583, 126 A. 919. In such situations no question of proximate cause is really involved but where the principle applies the plaintiff has not been guilty of a kind of negligence which the law will regard in determining liability. Thus the Restatement, 2 Torts, § 468, treats this principle under the head of contributory negligence and not that of causation. To extend this doctrine to make it a test of proximate causation, as we did in Cuneo v. Connecticut Co., 124 Conn. 647, 651, 2 A.2d 220, and Johnson v. Shattuck, 125 Conn. 60, 64, 3 A.2d 229, is not strictly accurate although the decisions in those cases were undoubtedly sound.

There is another type of case where contributory negligence will not be regarded as a proximate cause of the injuries sustained which is illustrated by Smith v Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 A. 888, 17 L.R.A.N.S., 707. In that case the plaintiff, about to drive a vehicle across a street railway track, looked back and saw a trolley car coming two or three hundred feet away; without looking again, he proceeded; when it became apparent to the motorman that the wagon of the plaintiff was about to cross the track the trolley car was some twenty to twenty-five feet away and might easily have been stopped; but the motorman became confused and instead of applying the brakes more effectively, released them, the speed of the car increased, and it ran into the plaintiff's vehicle. The trial court concluded that the plaintiff was negligent but that the defendant was nevertheless liable. We sustained the judgment on the ground that the negligence of the motorman in increasing the speed of the car and not that of the plaintiff was the sole proximate cause of the accident, saying (80 Conn. at page 270, 67 A. at page 889, 17 L.R.A.N.S., 707): ‘ The act of the intestate was a careless one, but, had the speed of the car not been subsequently increased, there would have been no collision between the two vehicles. This increase was not intentional, but it was equally deadly. At a moment when it was apparent that the intestate was about to cross the tracks, and when the car could have readily been stopped, it was allowed by an unskillful act of the motorman to shoot ahead with accelerated velocity. This act was the proximate...