Nehring v. Conn. Co.

CourtSupreme Court of Connecticut
Writing for the CourtPRENTICE, J.
Citation84 A. 301,86 Conn. 109
Decision Date19 July 1912
PartiesNEHRING v. CONNECTICUT CO.
84 A. 301
86 Conn. 109

NEHRING
v.
CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

July 19, 1912.


84 A. 302

George W. Wheeler and Ralph Wheeler, JJ., dissenting.

Appeal from Superior Court, New Haven County; Marcus H. Holcomb, Judge.

Action by Anna Nehring, executrix, against the Connecticut Company. Judgment on directed verdict for defendant, and plaintiff appeals. Affirmed.

Main street in Ansonia runs substantially north and south, and is about 41 feet wide between curbs. A single line of trolley tracks extends through the middle of it. Bank street crosses it at substantially right angles. October 11, 1910, Paul Nehring, the plaintiff's intestate, left his horse and wagon standing beside the west Main street curb

84 A. 303

a short distance south of Bank street. He visited a baker's wagon which was standing by the curb on the opposite side of Main street and some short distance north of Bank street, and there made a purchase. Having done so, he started with the expressed purpose of going to his own wagon, and walked in direct line of it. The route which he thus took, and continued until he was injured, would have taken him diagonally across the street and trolley tracks, approaching the latter at a sharp acute angle. He kept on his way without stopping until he was struck by the fender of a car which came upon him from the north at a fairly fast rate of speed. He was hit in the rear upon the right side. In his fall he was drawn under the car in such a way that death resulted. No one of the several witnesses of the affair, or portions of it, saw him look about him as he walked across the street, or take any other precautions for his safety. The witnesses all testified to his going directly forward in his course without, as far as they observed, giving apparent attention to anything about him. He was somewhat hard of hearing. The defendant introduced no evidence, but rested upon the close of the plaintiff's case, and asked that a verdict be directed in its behalf. The facts bearing upon the alleged negligence of the defendant need not be recited, as they have no pertinence to the opinion. It is not claimed that the injury was willfully or maliciously caused.

Robert L. Munger, of Ansonia, for appellant.

John P. Kellogg, of Waterbury, and Joseph F. Berry, of New Haven, for appellee.

PRENTICE, J. (after stating the facts as above). It is clear and unquestioned that there was evidence, justifying its submission to the jury, tending to establish the defendant's negligence in the premises directly contributing to produce the fatal injury which the plaintiff's intestate suffered. The verdict for the defendant was directed upon the ground that the plaintiff had failed to present evidence sufficient to go to the jury tending to establish the intestate's freedom from contributory negligence. Plaintiff's counsel in his brief formally takes issue with this conclusion of the court, asserting that the evidence was such as entitled the plaintiff to go to the jury upon the question of the intestate's negligence. It is apparent, however, that little reliance is placed upon this particular claim, and that the contention that the court erred must fail unless the appeal which is made to the so-called doctrine of "the last clear chance," otherwise known as supervening or intervening negligence, is well made. This appeal is urged with vigor, so that the plaintiff's main contention, which alone calls for serious consideration, is that, notwithstanding the intestate's failure to use ordinary care, the defendant is liable through the operation of the doctrine referred to, which, it is said, the court disregarded.

The appeal which is thus made is one which has become quite common of late, and it is repeated in several other cases pending for decision. It is apparent from the variety of circumstances under which these claims are made, and the positions which are assumed in support of them, that there exists in many quarters a by no means clear understanding of the doctrine thus invoked. This is by no means strange in view of the lack of consistency and intelligent statement which characterizes the numerous cases which have dealt with the subject, and the confused condition in which many of them have left it. It is hard to find a branch of the law which has received more unsatisfactory and inadequate treatment at the hands of the courts than has this, or one which is more in need of intelligent and consistent determination. The cases involving in some way the matter are numerous, and one must be hard to suit who cannot find in some of them implied or express support for his preconceived view. The most difficult thing to find is a clear expression of fundamental principles, and logical and consistent statements of their application to varying conditions. The late Seymour D. Thompson, in his work on Negligence, calls attention to this feature of the situation, and makes some forcible observations concerning the positions which have been taken by some courts. Section 231 et seq.

It is fortunate for us, however, that this court early asserted, and has since held true, to one general position. We are thus spared the embarrassment, under which text-writers and not a few courts have labored, of dealing with a variety of dicta or decisions troublesome to harmonize with each other, if not with sound reason. It is further our good fortune that the position thus early assumed in this jurisdiction is one which stands the test of reason, comports with public policy best of all, and has come to claim the concurrence of the best authorities, courts, and text-writers.

The notion appears to be more or less prevalent that this so-called doctrine is a discovery of recent years, that it embodies a new legal principle, and that this principle is one which invades the domain formerly assigned to contributory negligence, and sets limitations upon the operation of this latter doctrine, so long and so deeply imbedded in English and American jurisprudence. This is by no means true as respects either the age or the character and scope of the principle which it embodies. The names by which it has come to be known are indeed of recent origin, and perhaps its present vogue, and the misconception which prevails as to its true place in the law of negligence, is due in part to its thus being given an independent

84 A. 304

status in the terminology of the law. In fact, the principle is no modern discovery. It runs back to the famous "Donkey Case" of Davies v. Mann, 10 Mees. & W. 546, decided in 1842. It was distinctly recognized by this court in 1858 in Isbell v. New York & N. H. R. Co., 27 Conn. 393, 71 Am. Dee. 78. It was then not only recognized, but its true place in the law was assigned to it. It was shown to be no independent principle operating by the side of, and possibly overstepping the bounds of, other principles, but merely a logical and inevitable corollary of the long accepted doctrine of actionable negligence as affected by contributory negligence. The definition of its place, which was made in the clear-cut language of Judge Ellsworth, inexorably forbade that it could by possibility run counter in its application to the contributory negligence rule. This fundamental principle we have steadily adhered to. Smith v. Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888, 17 L. R. A. (N. S.) 707; Elliott v. New York, N. H. & H. R. Co., 83 Conn. 320, 322, 76 Atl. 298; Id. 84 Conn. 444, 447, 80 Atl. 283.

There are, indeed, cases which give countenance to a different view upon this latter subject. But their dicta oftentimes, not to say generally, uttered without an apparent comprehension of their logical consequence, would create havoc with the law, and leave it guideless, or with two conflicting guides. A sober second thought is, however, fast correcting this mistake, so that there has already come to be a general concurrence of the well-considered authorities in the view which has been taken in this jurisdiction.

The contributory negligence rule has no practical application save in cases where the defendant has been guilty of actionable negligence. It proceeds upon the theory that, whenever a person injured has contributed essentially to his injury by his own negligent conduct, the law will not give him redress, even against another who may have been directly instrumental in producing the result. To furnish a basis for its application there must have been a concurrence of negligent conduct. This negligent conduct, furthermore, must have been of such a character and so related to the result as to entitle it to be considered an efficient or proximate cause of it. If there is a failure to use due care on the part of either party at such a time, in such a way or in such a relation to the result that it cannot fairly be regarded as an efficient or proximate cause, the law will take no note of it. Causa proxima, non remota, spectatur.

It thus logically follows that, although a plaintiff may have failed to exercise reasonable care in creating a condition, or in some other way which cannot be fairly said to have been the proximate cause of the injuries of which he complains, the contributory negligence rule cannot be invoked against him. The question with respect to negligent conduct on the part of a person injured through the negligence of another as affecting the former's right to recover thus becomes resolved in every case into one as to whether or not that conduct of his was a proximate cause of the injury. If it was, then the contributory negligence rule is applicable, and the plaintiff will by its operation be barred from recovery. If it was not, that rule has no...

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78 practice notes
  • Mooney v. Terminal Railroad Association, No. 38122.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...opinion), 110 W. Va. 579, 159 S.E. 53, 92 A.L.R. l.c. 37; Bassett & Co. v. Wood, 146 Va. 654, 132 S.E. 700; Nehring v. Connecticut Co., 86 Conn. 109, 84 Atl. 301. (4) The last clear chance doctrine cannot be applied if plaintiff and defendant are engaged in a common venture when their cours......
  • Ackerman v. James, No. 54984
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...in Pangborn v. Central Railroad Co. of New Jersey, 18 N.J. at 101, 112 A.2d at 714, quoted at length from Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 301, 303, 45 L.R.A.,N.S., 896, 898--899 (Sup.Ct.Err.1912), in articulating its analysis of the last clear chance doctrine. We repeat a po......
  • Smith v. Gould, No. 6942.
    • United States
    • Supreme Court of West Virginia
    • June 9, 1931
    ...v. Cursan, 225 Mich. 311, 196 N. W. 398. Missouri: Burke v. Pappas, 316 Mo. 1235, 293 S. W. 142. Connecticut: Nehring v. Conn. Co., 86 Conn. 109, 84 A. 301, 524, 45 L. R. A. (N. S.) 896, 902. Kansas: Muir v. Fleming, 116 Kan. 551, 227 P. 536. North Carolina: West Construction Co. v. Altanti......
  • Short v. Boise Valley Traction Co.
    • United States
    • United States State Supreme Court of Idaho
    • February 13, 1924
    ...Ry. Co., 104 Md. 455, 10 Ann. Cas. 334, 65 A. 422; State v. United Ry. & E. Co., 97 Md. 73, 54 A. 612; Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 301, 45 L. R. A., N. S., 896.) It was error for the court to fail to instruct the jury that in determining the amount to be awarded plaintif......
  • Request a trial to view additional results
78 cases
  • Mooney v. Terminal Railroad Association, No. 38122.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...opinion), 110 W. Va. 579, 159 S.E. 53, 92 A.L.R. l.c. 37; Bassett & Co. v. Wood, 146 Va. 654, 132 S.E. 700; Nehring v. Connecticut Co., 86 Conn. 109, 84 Atl. 301. (4) The last clear chance doctrine cannot be applied if plaintiff and defendant are engaged in a common venture when their cours......
  • Ackerman v. James, No. 54984
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...in Pangborn v. Central Railroad Co. of New Jersey, 18 N.J. at 101, 112 A.2d at 714, quoted at length from Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 301, 303, 45 L.R.A.,N.S., 896, 898--899 (Sup.Ct.Err.1912), in articulating its analysis of the last clear chance doctrine. We repeat a po......
  • Smith v. Gould, No. 6942.
    • United States
    • Supreme Court of West Virginia
    • June 9, 1931
    ...v. Cursan, 225 Mich. 311, 196 N. W. 398. Missouri: Burke v. Pappas, 316 Mo. 1235, 293 S. W. 142. Connecticut: Nehring v. Conn. Co., 86 Conn. 109, 84 A. 301, 524, 45 L. R. A. (N. S.) 896, 902. Kansas: Muir v. Fleming, 116 Kan. 551, 227 P. 536. North Carolina: West Construction Co. v. Altanti......
  • Short v. Boise Valley Traction Co.
    • United States
    • United States State Supreme Court of Idaho
    • February 13, 1924
    ...Ry. Co., 104 Md. 455, 10 Ann. Cas. 334, 65 A. 422; State v. United Ry. & E. Co., 97 Md. 73, 54 A. 612; Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 301, 45 L. R. A., N. S., 896.) It was error for the court to fail to instruct the jury that in determining the amount to be awarded plaintif......
  • Request a trial to view additional results

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