Nehring v. Conn. Co.

CourtSupreme Court of Connecticut
Writing for the CourtGEORGE W. WHEELER, J.
Citation84 A. 524,86 Conn. 109
PartiesNEHRING v. CONNECTICUT CO.
Decision Date01 October 1912
84 A. 524
86 Conn. 109

NEHRING
v.
CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

Oct. 1, 1912.


84 A. 524

Dissenting opinion.

For majority opinion, see 84 Atl. 301.

GEORGE W. WHEELER, J. The trial court directed a verdict at the conclusion of plaintiff's evidence. The majority of the court have, we think, overlooked or misinterpreted some of the vital facts in the evidence, quite likely through their understanding that the plaintiff's case in reality rested upon the last clear chance doctrine, and that her claim, though pressed in argument and brief that the issue of contributory negligence was for the jury, was purely perfunctory. For this reason we state some of the facts which the jury had sufficient evidence before them to have found.

The accident occurred in the most prominent business section of Main street in the city of Ansonia. This street was paved with cobblestones. From the east curb to the west rail of the single trolley line running through the center of the street is 19 feet. Nehring. the deceased, was familiar with the street and car service, and he started at a point 5 feet from the east curb, as Hodgdon testified, to go to his wagon on the opposite side of the street to the south. He was then 14 feet from the track. At this time the defendant's single truck car, equipped with a hand brake, was approaching from the north, and was distant about 330 feet. The witnesses testifying as to the speed of the car placed it from 9 to 20 miles an hour. One Willehmy testified it was 15 or 20 miles an hour.

The motorman kept no lookout, as McKeon testified. He rang no gong, and gave no warning, and did not reduce the speed, as all witnesses agree. The deceased walked at an ordinary gait from the east curb south to a point on the track 78 feet distant. Two witnesses say he walked in a diagonal direction across the street. One witness says he walked directly across to a point within two feet of the track, when he continued in a straight line within two feet of the track. When about at the street crossing running from the northerly line of Bank street, he stepped upon the track, was struck in the back by the front end of the car, thrown under the wheels, and killed. All of the time the deceased was walking he was facing the north, with his back toward the car. The day was clear; and, although there were teams on the street, the view of the deceased to the north and of the motorman to the south was unobstructed. The deceased could have seen the car, and the motorman the deceased. The deceased was slightly deaf, but could have heard the gong, had the motorman rung it. No direct evidence was offered whether the deceased at or before the time he started to cross the street looked up to see if a car was approaching. The circumstances showed that the deceased did not look for the car after he got within five feet of the track.

The car was equipped with a fender, which it was the duty of the motorman to have had in position from two to four inches above the surface of the track. The fender at the time of the accident was a foot above the track. The fender could have been dropped almost instantaneously to position by the motorman by pressure of the foot. Had the fender been dropped before the deceased was struck, he could not have been dragged under the wheels, and in all probability would not have been killed. At a speed of 15 miles an hour the car could have been stopped in about 30 feet. When the deceased was within 5 feet of the track, if it be found he walked diagonally to the track, the car, which was traveling 15 miles an hour, nearly 4 times as fast as the deceased, was between 75 and 100 feet from the point where deceased was struck. If it be found the deceased walked to within two feet of the track, and thence south at that distance from the track, the car was distant from him at the time he got within 2 feet of the track about 200 feet. On either finding the motorman in the exercise of reasonable care would have known in the one case that he was about to put himself in danger from the car, and in the other that he had put himself in danger from the car and that he was wholly unconscious of his danger, and unless warned, or the car's speed slackened or stopped, he would be struck. After the motorman discovered the peril of the deceased and his unconsciousness of it, he had the opportunity, in the exercise of reasonable care, of avoiding injuring him. So, too, after the motorman discovered the peril to the deceased and his unconsciousness of it, he had the opportunity in the exercise of reasonable care to have dropped the fender, and so have avoided killing the deceased.

Two questions—contributory negligence and "last clear chance"—are involved. We discuss first the contributory negligence.

First. The deceased had a right to cross the street when he did. His duty and that of the railroad company were reciprocal, each to look out for the presence of the other, the one to avoid being injured, the other to avoid inflicting injury. Laufer v. Bridgeport Traction Co., 68 Conn. 475, 37 Atl. 379, 37 L. R. A. 533. The motorman had the right to assume that Nehring would not put himself in a place of danger; and Nehring had the right to assume that the car would be operated in a reasonable manner, at a reasonable rate of speed, in the main business street of this busy city a few minutes before the noon hour, and that the car would be under control, and the motorman keep a reasonable outlook, and give travelers on or near the track timely warning of the car's approach.

84 A. 525

There was no direct evidence that Nehring looked to the north, affirmative proof of which would he difficult in any event to obtain. No evidence and no inference is in the proof of the conduct of the deceased between the time he left the bake wagon and the time he is seen 8 or 10 feet south of the wagon and 5 feet from the curb. He was only 14 feet from the track. He was on his way across the street. It was reasonable for him to have looked at the beginning of his passage across, and the law presumes he did. Self-preservation would have suggested this.

In Baltimore, etc., R. Co. v. Landrigan, 191 U. S. 461, 24 Sup. Ct. 137, 48 L. Ed. 262, the court relied upon this presumption to find that a traveler used his senses before going upon a railroad crossing. "We know of no more universal instinct than that of self-preservation. * * * There are few presumptions based on human feelings or experience that have surer foundation." Id.; Sullivan v. Railroad Co., 175 Pa. 361, 365, 34 Atl. 798; Connerton v. Delaware, etc., Canal Co., 169 Pa. 339, 32 Atl. 416; 16 Cyc. 1057. This presumption is of a like character with that which enables the traveler to act on the presumption that a highway is reasonably safe for public travel. Lutton v. Vernon, 62 Conn. 11, 23 Atl. 1020, 27 Atl. 589. Of course, this presumption does not excuse the traveler from the use of reasonable care for his own safety, but that is to be measured in the light of this presumption.

If, then, the deceased saw the car over 300 feet to the north when he began his passage across the street, starting at a point 14 feet from the track, was it negligent for him to assume that he had time to cross the track, or ought he to have waited until the car passed? Was it negligent for him not to have accurately judged the speed of the oncoming car and perhaps to have decided he had time to cross? Was it negligent for him to have assumed that in the heart of the business street of this populous city, at about the noon hour, the speed of the car would not be unreasonable? Was it negligent for him to assume that the motorman would have the car under control? Was it negligent for him to assume that the motorman would give him timely warning of the car's approach and reduce its speed? Was it negligent for him, at this time, in this place, under these circumstances, not to have stopped, looked, and listened before going so near the track as to be in danger? These were some of the considerations for the jury. We have reiterated that it cannot be said as matter of law a failure to do these things is negligence. O'Connor v. Connecticut Ry. & Ltg. Co., 82 Conn. 170, 72 Atl. 934.

Whether the plaintiff's own negligence was a proximate cause of this accident depended on whether he exercised reasonable care under all of the many varying circumstances of the case, and that was a question of fact for the jury. Parrell v. Waterbury Traction Co., 60 Conn. 239, 21 Atl. 675, 22 Atl. 544. It is only when the application of this standard to the facts of a case makes it clear that no reasonable mind could reach any conclusion except that of contributory negligence that the decision becomes one of law and for the court. Is this case so plain that no reasonable conclusion could be reached other than that of the deceased's contributory negligence; that is, that his negligence was a proximate, efficient cause of the accident? If so, the direction of the verdict was right, otherwise, it was not. Steinert v. Whitcomb, 84 Conn. 262, 79 Atl. 675. We may estimate the average judgment by the average conduct. What is the conduct of the average person upon our crowded streets? Do not persons generally rely for their safety largely upon the fact that they travel upon the streets under the protection of the law which imposes upon the operators of instrumentalities of danger, such as the trolley car and the automobile, the duty of operation with knowledge of the liability of travelers being upon the street and the consequent necessity for careful outlook, reasonable speed, timely warning, and a car under control? The danger to a pedestrian crossing our streets has immeasurably increased with the use of these instrumentalities, and so has the fulfillment of his duty of using reasonable care. He should be held to his duty, but not in its practical application to a standard of care which is far beyond the...

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