Nesbit v. Crosby , 74 Conn. 554 ( 1902 )

The assignments of error, in so far as they relate to the charge and refusals to charge, may, with one or two exceptions, be classified into three groups, to wit: (1) those which criticize the court's instructions as to what constitutes negligence; (2) those which complain of the court's refusal to instruct the jury as a matter of law that certain conduct in the defendant would constitute negligence; and (3) those which complain of the action of the court in submitting to the jury, as a question of fact to be determined by them upon the evidence, whether or not the defendant was guilty of negligence in the premises.

In that portion of the charge where the trial judge undertook to define and describe negligence, he said: "Now, negligence, as the term may be applied in this case, gentlemen, it may be stated, is another term for want of ordinary care. At every turn of this case, gentlemen, you will be confronted with the question was this act, was that act, whether of the plaintiff or the defendant, such as an ordinarily prudent man would not have done, or was this omission or that omission to act, an omission that could not be predicated of a man acting prudently in the circumstances of the case. Now then, ordinary care is the care which may be reasonably expected of a man in the given circumstances. It is not always the same degree of care. A reasonable man in some situations will exercise extraordinary care, and he should do it. And it is yet ordinary care in reference to the circumstances or exigencies of the case; we sometimes say, and well enough, that the greater the danger the greater the necessity for the care. That is a practical consideration for you to take into account with reference to these claims on the one side and the other, as to the situation there, and the occasion demanded for extraordinary attention and care."

The plaintiff concedes that certain of the statements thus made were correct in law. He, however, extracts for criticism two sentences or parts of sentences. Aside from the unfairness of this method of criticism, we fail to see the force of it in either case. It is objected that the court erred because, in speaking of omissions which "could not be predicated of a man acting prudently in the circumstances of the case," he did not qualify the man thus referred to as an ordinarily prudent one. Analyzing this contention, it is, in effect, that prudence of action does not furnish a sufficient standard of duty; that the only prudence which satisfies legal requirements is the prudence of an ordinarily prudent man. This assumed distinction, between prudence in fact when exercised by one man and by another, is too subtle for our appreciation. We had supposed that the law was ever well satisfied with such action as was in fact prudent under the circumstances.

The second passage held up for criticism is the following: "Now then, ordinary care is the care which may be reasonably expected of a man in given circumstances." We infer from the criticism that when the law exacts reasonable care as a rule of conduct, it exacts something which may be in excess of what might be reasonably expected of a man. If so, the law is indeed a hard master. We assume that the law expects only what may be reasonably expected under given circumstances.

Possibly more precise and illuminating language could have been used in some passages of the charge upon this subject than that which the court employed; but we see no statement of bad law, and certainly no statement which, when taken in connection with the context, could by any possibility have made the charge an improper or misleading one.

The other errors assigned respecting the charge, whether they relate to the charge as given or to the requests refused, call for the consideration of only one general question. That question is whether, under the facts of the case, the court performed its duty, and its full duty, in leaving the questions of negligence and contributory negligence to the jury, to be determined as questions of fact upon the evidence, or whether it should have gone further and, in response to the requests of the plaintiff, told them that certain conduct enumerated in the requests and being the conduct of the defendant, as the plaintiff claimed it, constituted negligence as a matter of law.

The facts of the case on trial were in dispute. The jury alone could determine them upon the conflicting testimony. The court did not have an established or conceded state of facts to deal with. There was no escape, therefore, from a submission to the jury of the evidence bearing upon the questions of negligence, with directions to find the facts and thereon, under proper instructions as to the rule of duty, to determine as a question of fact whether or not that duty had been performed. This much is clear.

But the plaintiff contends that the court should, in response to his requests one and three, have taken certain aspects of the case from the jury and passed upon them as matters of law, and that in not doing so and in submitting the whole question of the defendant's negligence to the jury, it erred. The principles which underlie this contention and which are decisive of it, were so exhaustively discussed by this court inFarrell v. Waterbury Horse R. Co., 60 Conn. 239, that a rehearsal of them is unnecessary. Neither of the requests embodies a statement of fact so exhaustive of modifying possibilities and so extreme in its character as to create that unusual condition which occasionally justifies a court in pronouncing judgment thereon as one of law. There is no standard of duty in the premises specially imposed by statute or rule of law. The only breach of duty claimed is one of the general duty to exercise reasonable care under the circumstances. There is no aspect of the case disclosed by the record, and none furnished in any request, which does not call for the application to the facts of this general rule of conduct, and that rule alone, requiring the trier to put himself in the place of the parties and exercising a sound discretion based upon experience, not only upon the question of what the parties did or omitted to do but also upon the further question as to what a reasonably prudent man would have done under the circumstances. The facts and circumstances were of such a character that honest, fair-minded men might come to different conclusions thereon. The inference or conclusion of negligence was therefore one to be drawn by the trier, and not by the court as a matter of law. Farrell v. WaterburyHorse R. Co., 60 Conn. 239; Bunnell v. Berlin Iron BridgeCo., 66 id. 24.

The court below, therefore, acted properly in submitting the whole question of negligence to the jury, giving them, as it did, instructions suitable for their guidance in determining the issues involved under the various claimed states of fact. It instructed them as to the rights and duties of the members of the general public in the use and occupancy of a highway, and left them to determine whether or not the defendant's conduct in the exercise of those rights and in the performance of those duties, whatever it should be found to have been, was that of a reasonably prudent man.

A casual glance at the requests made emphasizes the propriety of the court's action in not complying therewith. It is too apparent for argument, that a charge which held that the facts enumerated in either one, regardless of all possible explanatory, justifying, or modifying facts or circumstances, must be held to conclusively impute negligence, would have been inexcusably improper. The absurdity of such instructions would have been no less manifest than that attributed by us in Park v. O'Brien, 23 Conn. 339, to a request of similar character made under similar circumstances.

There remains to be noticed the second request, which has not been directly involved in our discussion thus far. Concerning this request the obvious criticism is that it is too general and sweeping in its terms and would be likely to have been misleading. It did not properly recognize excusing or modifying circumstances. In so far as the request embodies good law, the charge as given suitably met the situation.

The objection to the charge contained in the 13th assignment of error, to the effect that the court failed to lay down any rules of law which would be an adequate guide to the jury in determining under what circumstances a horse and wagon left in the public highway would be an obstruction to the highway, is, we think, without foundation.

Most of the assignments of error relating to the rulings of the court upon the admission of testimony, concern matters of minor importance; none require extended discussion.

The question to Wilcox, as to the business of McCabe, was one quite within the discretion of the court to admit.

Those to the same witness, to which he replied, "I do not remember," became, by reason of the answers, entirely harmless, even if improperly admitted. Questions alone do not make testimony.

The question to the same witness, concerning the payment of the veterinary surgeon's bill, was properly admitted for the purpose of showing interest. If it had no bearing of this kind, it was certainly absolutely harmless.

The action of the court in excluding the question upon the redirect examination of the same witness, was proper. If the question involved a false assumption of fact, or unauthorized statement of fact, it was the court's duty to promptly disallow it. For the purpose of the ruling it was for the court to decide upon the question of fact involved. If the plaintiff doubted the court's statement of fact he should have appealed to the stenographer's minutes. He made no such appeal. The statement, furthermore, is fully borne out by the record.

The first question to Revere was leading in form, and in its latter part involved an implication, if not direct assumption, of a fact not supported by evidence. Besides, the defendant made no claim that there was, at the time in question, any light or other indication, other than the team itself, that it was where it was. The defendant's claim was that the light was brought out later. The ruling of the court excluding this question was therefore neither erroneous nor by any possibility harmful.

The question to Revere as to the location of the wagon was properly admitted. It called for the witness' opinion upon a matter of ordinary everyday observation and knowledge. It did not call for an expert opinion. Sydleman v.Beckwith, 43 Conn. 9, 13.

The testimony elicited from Revere upon cross-examination, concerning his conversation with a young man, was most distinctly harmless to the plaintiff.

The two questions propounded to Revere upon redirect and excluded, when taken in connection with the following one admitted, furnish no ground whatever for complaint. They called for the witness' construction and opinion upon a matter of law as applied to undisclosed facts. They did not call for a simple recital of fact. When a proper question, which limited the office of the witness to a statement of facts, was put, the court admitted it.

The question to Palmer called for the exercise of his judgment and his opinion therefrom as to the speed at which a horse was traveling along the highway, judging from the sound. The question was a proper one to put to a non-expert witness. Sydleman v. Beckwith, 43 Conn. 9, 13. It is no objection to the question that the judgment called for was one based upon the exercise of the sense of hearing and not of sight. The law makes no such distinction between the senses.

There is no error.

In this opinion the other judges concurred.