Morrisset v. Bridgeport Traction Co.

• Citation: 68 Conn. 215,35 A. 1126
• Court: Supreme Court of Connecticut
• Decision Date: 25 June 1896
• Parties: MORRISSET v. BRIDGEPORT TRACTION CO.

35 A. 1126

68 Conn. 215

MORRISSET

v. BRIDGEPORT TRACTION CO.

Supreme Court of Errors of Connecticut.

June 25, 1896.

Appeal from court of common pleas, Pairfield county; Curtis, Judge.

Action by John S. Morrissey against the Bridgeport Traction Company to recover damages for injuries to plaintiff's horse and wagon. There was judgment for the plaintiff, and defendant appeals. Reversed.

Morris W. Seymour and Howard H. Knapp, for appellant.

James A. Wilson and Edward P. Nobbs, for appellee.

ANDREWS, C. J. If the court required of the defendant a higher degree of care in the management of its car than the law imposes, or if the court required of the plaintiff's driver a lower degree of care in driving his wagon, so as to avoid a collision with the defendant's car, than the law requires, then in either case there is an error of law which may be reviewed by this court. The driver heard the gong of the approaching car, turned, and saw the car coming behind him at a rate of speed greater than his own, when he was 125 feet away. His wagon was partly on the track of the defendant. It was his duty to drive off the track without loss of time. He did not do so, but continued along on the track, where he knew he was in danger of being hit, and where the wagon was hit as soon as the car overtook him. This conduct was negligent. It was an omission to use ordinary care which contributed to the injury complained of, and precludes any recovery for that injury, unless the conduct of the motorman on the car obviated the effect of that negligence. It is true that the motorman did not lessen the speed of the car until the car was within 15 feet of the wagon. He might rightfully act on the presumption that the driver would drive off the track before the car reached him. Andrews v. Railroad Co., 60 Conn. 203, 200, 22 Atl. 566; Glazebrook v. Railway Co., 160 Mass. 239, 35 N. E. 553; Everett v. Railway Co. (Cal.) 43 Pac. 207. And he had no duty to slacken his speed until he was made aware that the driver was not going to turn out. The wagon could have been removed from all danger in a less distance than the 15 feet, for there was nothing to prevent the driver from turning to the west, and into a place of safety. As soon as the conduct of the driver indicated to the motorman that the wagon was not to turn out of the way, the motorman did everything in his power to prevent injury. He did not rush upon the wagon. At no time was he reckless or willful. He did nothing which...