Montambault v. Waterbury & Milldale Tramway Co.
Decision Date | 01 March 1923 |
Parties | MONTAMBAULT v. WATERBURY & MILLDALE TRAMWAY CO. |
Court | Connecticut Supreme Court |
Appeal from Superior Court, New Haven County; John P. Kellogg Judge.
Action by Ernest Montambault against the Waterbury & Milldale Tramway Company. Judgment for defendant, and plaintiff appeals. Error, and new trial ordered.
The plaintiff offered evidence to prove these facts: He was on December 12, 1919, a passenger on defendant's trolley railway, and that ordinarily the car he patronized went straight through to plaintiff's destination, but at the time of the accident, and for some time prior, the tracks of defendant at one point on this line for about 400 feet had been torn up, and cars did not operate over this space. Upon reaching this part of the track the plaintiff by direction of the conductor, left the car to take the car ahead. He walked along the track and in the road for about 400 feet until he reached two cars ahead standing about 3 feet apart. The farther or first car was an express car on which the plaintiff ordinarily rode. The doors of the front car were closed upon the side from which plaintiff approached, and he saw passengers from the car on which he had been passing between these two cars for the purpose of boarding the front car. There was no one in behalf of the defendant directing passengers what to do. He received no direction except that given by the conductor of the car he had left. The rear vestibule of the front car was filled with people, and the seats inside the car were taken. While the plaintiff was passing between the cars, without warning the air brake was released on the front car, and in consequence it backed into the rear car, catching the plaintiff and jamming his body between the cars, and severely injuring him. The defendant's mortorman upon the front car had left the rear vestibule of the car leaving the controller and brake attached to the motor, and in consequence some one had released the air. The plaintiff when he heard the air released jumped to avoid the collision, getting onto the drawbar or some part of the car and was crused between the headlight on the rear car and the front car. The plaintiff did everything he reasonably could to save himself. The injuries to the plaintiff were caused by the negligence of defendant's servants in releasing the air, or allowing the release of the brakes on this car, without warning to the plaintiff that the car was about to move backward, when defendant ought to have known that the plaintiff was passing between the cars, and was likely to be injured.
The defendant offered evidence to prove these facts: The plaintiff should have boarded the rear of the two cars, as it stopped at his destination, while the front car did not, it being an express car. The two doors upon the side of the front car the plaintiff was approaching were open, and passengers could enter by either the rear or front doors. There were plenty of unoccupied seats in the front car. Instead of entering the car the plaintiff voluntarily passed between the two cars and took a position on the outside of the car, standing on the bumper, which was 2 3/4 feet from the track, and directly in the center of the car, at the point of contact, should the two cars collide. This position was a dangerous one, and was taken by the plaintiff unnecessarily. The servants of defendant did not release the air brake. The car moved back slowly into the rear car. There was no drawbar on this car. The defendant claimed that the plaintiff was guilty of contributory negligence.
Clayton L. Klein, Joseph E. Carey, and James A. Peasley, all of Waterbury, for appellant.
John H. Cassidy, of Waterbury, for appellee.
WHEELER, C. J, (after stating the facts as above).
The case is one of conflicting evidence, so plain that there was not the slightest justification for the appeal from the denial of the motion to set aside the verdict. The taking of an appeal upon this ground thus compelling the printing of the entire evidence was an abuse of the right of appeal.
The issue of the negligence of the defendant, as well as the issue of the contributory negligence of the plaintiff, were, upon the evidence offered by the parties, conclusions for the jury to draw, and not conclusions for the court to draw as matter of law, and therefore the error assigned in the failure of the court to charge plaintiff's eleventh request that the plaintiff was not guilty of contributory negligence is not well taken. The court charged the jury:
" I will state to you that there is another fact that must be taken into consideration by you in determining whether or not the plaintiff's conduct was that of a reasonably prudent man, and that is whether it was reasonably necessary for him to go between the cars in order to get on the car in question."
The plaintiff's assignment of error as to this portion of the charge must be sustained. The determination of whether the plaintiff's conduct was that of a reasonably prudent man was for the jury. The court's restriction of this determination to the jury's finding " whether it was reasonably necessary for him to go between the cars" was the setting up by the court of the standard of reasonable care as applied to this particular case. This the court could not do. It was an invasion of the province of the jury. And if the jury had confined its consideration of the conduct of the reasonably prudent man to this one consideration, they would have failed in their duty, which was to have before them the entire situation--all the facts in evidence bearing upon this point--and then say what the...
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