Tullock v. Connecticut Co.

• Decision Date: 22 December 1919
• Citation: 94 Conn. 201,108 A. 556
• Court: Connecticut Supreme Court
• Parties: TULLOCK et al. v. CONNECTICUT CO. BROWN et al. v. SAME.

108 A. 556

94 Conn. 201

TULLOCK et al. v. CONNECTICUT CO.

BROWN et al. v. SAME.

Supreme Court of Errors of Connecticut.

December 22, 1919

Appeal from Superior Court, New Haven County; Frank D. Haines Judge.

Actions by Katherine Fraser Tullock, administratrix, and others, and by Lena G. Brown, administratrix, and others, against the Connecticut Company, to recover damages for personal injuries resulting in the death of the injured person in each case and alleged to have been caused by the defendant's negligence. Verdict and judgment in each case for the plaintiff employers of the decedent, who have been compelled to make compensation to their respective dependents, and appeal by the defendant. No error.

The defendant owned and operated a double-track trolley line between New Haven and Derby. The place of accident was in the outlying country district a little more than halfway from the former to the latter city. At this point the rails are laid outside of the highway limits, except that the northerly of the four is in places slightly inside of those limits. The traveled portion of the highway is paved with concrete to the width of 18 feet. Between this concrete traveled way and the most northerly of the tracks is, at the point of accident, a space of some 3 feet in width which was neither prepared for travel nor ordinarily traveled. A little east of this point the trolley tracks diverge from the traveled way, soon leaving a considerable distance between the two. Both the traveled way and the tracks were for a considerable distance in the direction of New Haven practically straight with no obstruction to the view either way.

On the evening of November 23, 1917, the plaintiffs' intestates Tullock and Brown, accompanied by another person named Frisco, all in the employ of the plaintiffs Miner, Read &amp Tullock, left Derby to return to New Haven in an automobile truck. As they approached the point of accident the right-hand rear tire blew out. They thereupon drew the truck up close to the right-hand or southerly edge of the concrete, and there stopped it to change the tire. Had they proceeded but a little further, there would have been ample room for them to make the change without bringing themselves into dangerous proximity to a trolley car should one pass. The headlights on the truck had been previously lighted, as Frisco testified, and so remained until the time of the accident save as hereinafter stated. There were three of these lights. One in the center was a powerful acetylene lamp with mirror reflector. The other two were kerosene lamps with glass faces some 6 or 7 inches in diameter and giving out, as was testified, a bright light. These two were located on either side of the wind shield.

Tullock and Brown did the manual work of changing the tire. They had almost finished their task, and were putting on or tightening up the last few nuts when the accident happened. In doing this work they occupied the space between the concrete and the tracks and were kneeling or crouching down therein. Frisco meanwhile assisted them by taking one of the kerosene lamps off from the truck and holding it so that it would furnish light for the better prosecution of the work of his companions. As he held it he stood, as he, the only witness on the subject, testified, between the two rails of the Derby-bound track and a little to the west of the wheel upon which the work was being done, and with the lamp held about 4 feet from the ground and with its open face towards New Haven. In this situation all three of the men were struck by a Derby-bound car of whose approach they were unaware. The trolley car which hit them was proceeding at a speed estimated by the motorman at about 15 miles an hour. The night was described by him as very dark. The car was lighted in front by two ordinary incandescent bulb lights, which, under ordinary circumstances, threw a light ahead only about 15 or 20 feet. A part of the ordinary equipment of the car was a high-powered light, and ordinarily such lights are used while running in the outlying portions of the route. There was such a lamp upon the car when it was taken from the barn, but the motorman, having discovered that it was not in working order, removed it. He testified that he could have stopped the car at the speed at which he was going in about 100 feet. He also testified that he did not observe either of the men until he was within 15 or 20 feet of them.

Harrison Hewitt and Harrison T. Sheldon, both of New Haven, for appellant.

Walter J. Walsh, of New Haven, for appellees.

PRENTICE, C.J.

All the reasons of appeal have been abandoned by not being pursued save only that which charges error in the denial of the defendant's motions to set aside the verdicts and grant new trials.

The evidence, in whatever light it be viewed, unmistakably discloses that the plaintiffs' intestates were guilty of negligence in their choice of a place in which to perform the work in which they were engaged at the time they were injured and in the manner in which they were performing it. A contrary conclusion could not reasonably have been arrived at by the jury. They could not, therefore properly have returned the plaintiffs' verdict which they did return unless it was through the application of some phase of the doctrine of the last clear chance to the situation as it was found to have existed. It is apparent that the only phase or phases of that doctrine within which the circumstances of the case could by possibility bring it are those which were under consideration in connection with the second and third of the classes of cases defined and discussed in Nehring v. Connecticut Co., 86 Conn. at pages 120 and 123, et seq., 84 A. 301, 524, 45 L.R.A. (N. S.) 896, 902. These two classes comprehend those where the injured person has negligently come into a position of peril, from which, as is apparent to the injuring person, he either cannot, in the exercise of due care, or will not, avail himself of means of escape in season to save himself from harm, and where furthermore he thereafter does not by his active negligent conduct materially change the situation. Of such conditions we said that, if the injuring person becomes aware of the other's peril in season for him, in the...