Weidlich v. New York, N. H. H.R. Co. , 93 Conn. 438 ( 1919 )

The requested corrections of the finding, made the subject of the appeal, are without merit. Paragraph 15 of the statement of facts claimed in evidence by plaintiff, may be supported upon the gatetender's statement of what he saw and heard and did. Paragraph 23, as to the view of the approaching train, is supported by inferences which may reasonably be drawn from the testimony of the engineer, Burns. Paragraph 6, as to the freedom from negligence of the plaintiff's intestate, was a conclusion which the trier might reasonably have made from all the facts and circumstances in the case. The corrections asked did not justify the printing of the evidence.

The motion to set aside the verdict could not prevail if the finding of the intestate's due care stands. The failure of the gatetender to lower the gates, or to give adequate warning of the approach of the train, amply justified a finding of negligence on the part of the gatetender. The intestate was a guest in the automobile; he had no control over the driver and no authority to direct him. He was not responsible for the negligence of the driver of the automobile, had there been such.Sampson v. Wilson, 89 Conn. 707, 96 A. 163. The intestate must have exercised due care, but this is the care that may be reasonably inferred from the circumstances. The guest on the rear seat of an automobile owes a very limited degree of care. He is not expected to direct the driver, nor to keep a lookout. Dangers or threatened dangers known to him, he must warn the driver of, and for his failure to do so be chargeable with having proximately contributed to the accident, unless a reasonable person under all the circumstances would not have given the warning.

The defendant argues at length that the plaintiff offered no proof to show that his intestate used any care whatsoever in approaching this crossing, nothing to indicate whether he was then dead or alive, asleep or awake. The intestate was seen a few moments before the accident and a short distance from the crossing, seated on the rear seat of the closed automobile. If he had been asleep, or reading a book, or engrossed in talk with another than the driver, or in deep thought, he would not have been negligent because of this. Ordinary experience instances this as not infrequently the conduct of the ordinarily prudent person when riding as a guest on the rear seat of an automobile. No duty was upon the intestate to explain, excuse, or justify his course.

There is no presumption, the defendant says, that this intestate continued in life from the time he was seen alive just before the accident to the time of the collision. If it may be assumed as a self-evident result of human reason and experience that because this intestate was alive shortly before the collision the jury might have found that he was alive at the time of the collision, then no further proof of this fact is required. This presumption of fact will then supply the place of evidence in setting up something which must be overcome by proof. Ward v. Metropolitan Life Ins. Co.,66 Conn. 227, 239, 33 A. 902; Sturdevant's Appeal,71 Conn. 392, 400, 42 A. 70. Life will be presumed to continue for such period of time as will be reasonable under the circumstances, depending upon the length of time intervening, the age, physical condition and all the surrounding circumstances. 2 Chamberlayne on Evidence, § 1034. In each case it is a presumption of fact subject to be controlled by whatever facts and circumstances may be in evidence. Hyde Park v. Canton,130 Mass. 505, 509; 2 Chamberlayne on Evidence, § 1042. "If the lapse of time was comparatively short, it would, in ordinary cases, in the absence of any evidence to the contrary, be usually deemed satisfactory.State v. Plym, 43 Minn. 385, 388, 45 N.W. 848; Chicago Alton R. Co. v. Keegan, 185 Ill. 70, 56 N.E. 1088. Since the lapse of time when Mr. Weidlich was last seen alive and the collision was so short, the jury were warranted, in the absence of other facts and circumstances to the contrary, in presuming that the life of the intestate continued to the time of the collision, and this presumption supplied the place of evidence.

There was evidence to go to the jury on the due care of the intestate. It arose out of the circumstances of the case and the necessary inference arising from these. "The nature of the accident . . . makes it improbable, according to common experience, that negligence on the plaintiff's side was a contributing cause." Livermore v. Fitchburg R. Co., 163 Mass. 132, 133, 39 N.E. 789.

The charge is complained of in three particulars:

1. That "the existence of due care in any case may be inferred from the facts and circumstances in evidence." This, and the entire charge upon this subject, accords with the frequent expression of our court. The real criticism is in the court's having submitted to the jury the issue of due care, and we have already disposed of this as groundless. This criticism is based upon the requests to charge and not upon the charge as made, which is the basis of the errors specifically pressed in the brief of appellant.

2. That the one question presented by the plaintiff was that the gates "were not maintained and operated with ordinary care and prudence at this time." Both the question of maintenance and operation, the appellant claims, were submitted to the jury, although only that of operation was raised in the pleadings; and that this must have been harmful since it was in evidence that the southeast gate was not in working condition. The trial court in its charge interpreted the complaint to limit the negligence charged to the operation and not to the maintenance of the gates, and expressly excluded from the consideration of the jury any negligence other than that complained of and especially that arising out of the condition of the gates. A reading of the charge fully satisfies us that the jury could not have failed to understand this as the single ground of negligence charged in connection with the gates. We think it entirely clear that the court used the terms "maintained and operated," in this portion of the charge complained of, in the sense of operated and without reference to the physical condition of the gates.

3. Error is predicated of the following instruction: "The plaintiff claims to have proved that the deceased was on the back seat of the automobile; that he was not driving and had no control over the operation of the car. If the jury finds this to be the fact, then he is in nowise chargeable with any failure of the driver of the automobile to use reasonable care. But before the plaintiff can recover in this action you must be satisfied that the deceased has omitted nothing in looking or listening for himself that a careful prudent man should do under similar circumstances." The defendant complains of this charge because there was no evidence that (a) the intestate was seated on the rear seat, (b) that he lived up to the standard of the conduct of the reasonable man, and (c) that the charge did not explain clearly the meaning of "imputed negligence."

Proof having been offered that the intestate was on the back seat at a time shortly before the accident, the presumption that he so continued would follow, in the absence of evidence to the contrary, just as the presumption of life continued. But in addition, as we understand the record, the plaintiff offered evidence from which the jury might have found this as a fact from the location of the body of the intestate after the accident and from the fact that the front seats were occupied before the accident by the driver and by a dog.

We have already said all that we deem necessary to indicate that the question of due care was properly left to the jury.

The subject of imputed negligence was presented to the jury in the manner approved of by our decisions and with clearness and sufficient completeness. Sampson v.Wilson, 89 Conn. 707, 96 A. 163.

There is no error.

In this opinion the other judges concurred.