King v. Connecticut Co.

• Decision Date: 03 March 1930
• Citation: 149 A. 219,110 Conn. 615
• Court: Connecticut Supreme Court
• Parties: KING v. CONNECTICUT CO.

149 A. 219

110 Conn. 615

KING v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

March 3, 1930

Appeal from Superior Court, New Haven County; Edward M. Yeomans Judge.

Action by Adolph King against the Connecticut Company to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Tried to the jury. Verdict for plaintiff, and defendant appeals from the denial of its motion to set aside the verdict and for errors in charging the jury.

No error.

Instruction that plaintiff must prove motorman's actual or imputed knowledge of plaintiff's danger, from which he could not or would not escape in time to stop car, sufficiently presented last clear chance doctrine.

William J. Larkin, Jr., of Waterbury, for appellant.

Clayton L. Klein and Joseph E. Talbot, both of Waterbury, for appellee.

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

WHEELER, C.J.

The plaintiff seeks to recover damages for personal injuries suffered by him in consequence of a trolley car of defendant colliding with him while he was upon a public highway. Among the errors assigned in defendant's appeal are the court's failure to charge upon the last clear chance, or supervening negligence doctrine in accordance with its requests 4, 5, and 6, stating the grounds which indicated that this doctrine did not apply. Instead the court charged that it did apply. If the facts in evidence did not require a charge upon this subject, the defendant would have been justified in pressing, not only its claim that the doctrine was not applicable, but also the trial court's error in charging upon it. The decision of this point depends upon the conclusion to be drawn from the facts found. Since the same question arises on the appeal from the denial of the motion to set aside the verdict, we will reserve further discussion of it until we take up that ground of appeal.

Defendant's fourth request to charge on the last clear chance doctrine limited the zone of danger to the trolley track without taking into account the space outside the track from which the plaintiff, lying down, could extend his feet so as to place them on the track; that alone would furnish ample support, without further consideration, for the court's failure to incorporate this request in its instructions. The first part of the fifth request upon the care required to be exercised by the plaintiff the court fully and correctly presented to the jury. After giving the ordinary rule of duty as to the care the plaintiff was required to exercise, the court continued: " And of course, if he (the plaintiff) was seized, as has been testified, while so walking, with a sort of shock or thrombosis, which caused him to fall and make it impossible for him to get away, of course he would not be to blame for that. Now, ordinarily, if a man lay down with his legs across the trolley rail and stayed there, he would be guilty of contributory negligence. But if he fell there, when properly there and using ordinary care, as a result of a seizure which came upon him without his fault, he would not be guilty of such negligence." This charge covered the situation upon the facts claimed by the plaintiff to have been proved with sufficient accuracy and in terms easily within the comprehension of the jury. If the plaintiff while in a position safe from danger from the car in consequence of an attack of cerebral thrombosis became incapable of exercising reasonable care and by extending his feet so as to put them on the track fell into a position of danger from the car, this would not be attributed to his contributory negligence, for nature, not his will, placed him there. So if an insane man became incapable of exercising reasonable care, or a child of so tender years as to be incapable in the eye of the law of contributory negligence, came into the path of the trolley car, neither of these persons would be guilty of contributory negligence in being in such place of danger, and, if the car struck him, his conduct would not be in law the proximate cause, that is, the substantial factor, in causing his injuries. Mahoney v. Beatman, 110 Conn. 195, 147 A. 762; Bohlen, Studies in the Law of Torts, p. 568.

The fifth request in its second part that, as matter of law, this doctrine did not apply, we shall take up at a latter point and shall show that the facts in evidence required the court to present this doctrine to the jury in accordance with our law and leave to them its application as one of fact. The sixth of defendant's requests which contained the elements of this doctrine and the proof required to support it, which defendant claimed made this doctrine inapplicable, so far as it coincided with our law, was presented to the jury in unexceptionable instructions: That the last clear chance doctrine " requires the presence of four conditions--first, that the injured party has already come into a position of peril. Second, that the injuring party then or thereafter becomes or, in the exercise of ordinary prudence, ought to have become aware, not only of that fact but also that the party in peril either reasonably could not escape from it, or apparently will not avail himself of opportunities open to him to do so. Third, that the injuring party subsequently has the opportunity, by the exercise of reasonable care, to save the other from harm. Fourth, that he fails to exercise such care." This statement literally corresponds with the rule found in Fine v. Connecticut Co., 92 Conn. 626, 103 A. 901, and was supplemented by comments which helped to make these four conditions so plainly stated by this court better understood by the jury. These were followed by this instruction: " Now, the question for you to determine is whether the motorman knew or should have known, if he had kept a proper lookout, that the plaintiff was in a position of danger from which he could not or would not extricate himself; that after he knew or should have known that, there was still opportunity, in the exercise of due care, to stop the car, and that he failed to stop it. All these things must be proved by the plaintiff by a fair preponderance of the evidence." After a correct exposition of the meaning of preponderance of the evidence the court concluded its charge upon this subject in these words: " Now, after you have passed upon all these questions which it is necessary for the plaintiff to prove, if you find that he has failed to prove any of them by a fair preponderance of evidence, then your verdict must be for the defendant and you need go no further. On the other hand, if you find that the plaintiff has proved his contentions by a fair preponderance of the evidence, you come to the question of damages."

The court thus specifically directed the attention of the jury to the factors which they must consider in passing upon the third of these conditions, and this was the real question in the case. And then the court finally instructed the jury that, if they found the plaintiff had failed to prove any of these conditions by the required proof, their verdict must be for the defendant. The jury must have understood that it was necessary for them to find the facts underlying this third condition; otherwise the verdict must be for the...