Nehring v. Connecticut Co. , 86 Conn. 109 ( 1912 )

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 though 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 cobble stones. From the east curb to the west rail of the single trolley line running through the middle of the street is nineteen feet. Nehring, the deceased, was familiar with the street and the car service thereon, and he started at a point five 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 fourteen 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 three hundred and thirty feet. The witnesses testify as to the speed of the car, placing it from nine to twenty miles an hour. One, Willehmy, testified it was fifteen or twenty 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 seventy-eight 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 tow 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 south, 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 to position 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 fifteen miles an hour the car could have been stopped in about thirty feet.

When the deceased was within five feet of the track, if it be found he walked diagonally to the track, the car which was travelling fifteen miles an hour, nearly four times as fast as the deceased, was between seventy-five and one hundred 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 two feet of the track about two hundred feet. On either finding the motorman, in the exercise of reasonable care, would have known in the one case that the deceased 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.

1. 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 TractionCo., 68 Conn. 475, 37 A. 379. 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 travellers on or near the track timely warning of the car's approach.

There was no direct evidence that Nehring looked to the north, affirmative proof of which would be difficult in any event to obtain. There is no evidence, direct or inferential, of the conduct of the deceased between the time he left the bake wagon and the time he is seen eight or ten feet south of the wagon and five feet from the curb. He was only fourteen 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 P. R. Co. v. Landrigan, 191 U.S. 461, 474,24 Sup. Ct. Rep. 137, the court relied upon this presumption to find that a traveller 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." Sullivan v.New York, L. E. W. R. Co., 175 Pa. 361, 365,34 A. 798; Connerton v. Delaware H. Canal Co.,169 Pa. 339, 32 A. 416; 16 Cyc. 1057. This presumption is of a like character with that which enables the traveller to act on the presumption that a highway is reasonably safe for public travel. Lutton v. Vernon,62 Conn. 1, 11, 23 A. 1020, 27 id. 589. Of course this presumption does not excuse the traveller form 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 three hundred feet to the north when he began his passage across the street starting at a point fourteen 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 its 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 A. 934. Whether the decedent'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. Farrell v. Waterbury Horse R. Co.,60 Conn. 239, 21 A. 675, 22 id. 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 A. 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 travellers 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 conduct of the average man. Penalizing the injured to relieve the injuring traveller decreases the public safety and in the end must add to the public burden the care of many of the stricken.

We think the question of the decedent's contributory negligence should have been left to the jury.

2. Though Nehring was negligent in going near and upon the track without using his senses to discover the approaching car, his negligence was not a proximate cause of the accident, since the case is one for the application of the "last clear chance" doctrine. This is merely a name for certain forms of actionable negligence. These involve a situation presenting: (1) The negligence of the defendant; (2) the concurrent negligence of the plaintiff; (3) after such negligence of the plaintiff some intervening negligence of the defendant which becomes the last act in the chain of causation.

Our consideration of this doctrine will be aided by holding in mind some fundamental principles of the law of negligence. The negligence which will support a recovery for an injury must be its proximate cause. If one's own negligence be a proximate cause of his injury, he cannot recover for the consequences of another's negligence, for the law will not suffer him to recover for the misfortune due in part to his own fault. The negligence of plaintiff and defendant may be concurrent, but that of the plaintiff may, in a legal sense, have ceased, because it has become a remote cause of the accident. It thus ceases to be a proximate cause of the accident.

Just prior to the accident the defendant's car was being negligently operated. Assuming the decedent walked either diagonally toward and upon the track, or close to it, without using his senses to learn of the approaching car, and that there was no excuse for his failure, he was negligent. If the accident occurred while decedent and defendant were negligent and the decedent's negligence was a proximate cause of the accident, and there was nothing more to the case, there could be no recovery. But if the defendant's motorman saw, or could by the exercise of reasonable care have seen, the decedent either approaching the track and about to place himself in danger, or walking so near the track as to be in danger, apparently heedless and unconscious of his peril, he owed to the deceased the duty of warning him and of observing such precautions as might avoid running into him. This was the case before the jury. We hold knowledge and the means of knowledge of one having a duty to know equivalent.Elliott v. New York, N. H. H.R. Co., 83 Conn. 320,76 A. 298. This duty originated after the negligence of the motorman and of the deceased, and after the latter's peril and his unconsciousness of it might have been discovered by the motorman. If its performance would have avoided the injury to the deceased, its breach was the proximate cause of the accident, and his negligence in placing himself in the place of peril a condition, or the remote cause, of it. Of course, if he had not gone upon the track he would not have been injured; if he was negligent in going upon the track without using his senses, that was not the proximate cause of the accident, but the failure of the defendant to avoid the accident after it had the opportunity of avoidance and after it knew of the decedent's peril and his unconsciousness of it.

In each case of discovered peril caused by one's negligence the question is, did the defendant have the opportunity after such discovery, and was it his duty, to have avoided the accident? Whether the conduct of the motorman was gross negligence, or ordinary negligence, the breach of duty was the same in kind, though differing in degree. If one walks upon a railway track drunk, or in a reverie, or otherwise careless; or if one stands or lies on or so near the railway track as to be in danger and unconscious of it; or if one is in a position of peril through his own negligence from which he is unable to extricate himself, the person knowing or having the means and the duty to know of his presence owes him the duty of avoiding injuring him. One who is negligently in a position of danger and unconscious of it is in no different situation than if he were incapable of extricating himself from his peril.

The few authorities which hold the antecedent negligence of the deceased in getting into peril is concurrent with the defendant's negligence so as to bar a recovery, make meaningless the rule of duty compelling the defendant to use reasonable care to avoid the accident after discovery of the peril. A legal duty without a corresponding obligation is an anomaly. When we relieve the motorman of liability for failure to avoid an accident, he may operate his car at a negligent speed, without having it under control, without keeping an outlook, without giving warning of approach, and neither having nor using the ordinary instrumentalities of equipment for avoiding injury to travellers, and so long as his conduct is not gross negligence it carries with it no liability.

The opinion of the court classifies in five groups the several kinds of cases which have been thought to be within the "last clear chance" doctrine. In group one, the defendant, instead of doing his duty, does something which is a new act of negligence. In group two, the peril is one from which the plaintiff cannot, or cannot reasonably, extricate himself. Each group supports a recovery. In group three, means of escape were open to the plaintiff down to the accident, but he remained unconscious of his peril. The opinion holds that if the plaintiff remains passive after exposing himself to peril and does nothing to materially change that condition, there may be a recovery. But in group four, assuming the same facts as in group three, the court holds that if the plaintiff after exposing himself to peril, instead of permitting the fixed condition to remain unchanged continues as an active agent in producing the conditions under which the injury was received down to its occurrence, or until it was too late for the defendant to avoid the accident, there can be no recovery. In group five, the defendant knows, or ought to know, that the injured one is careless and is about to expose himself to danger of which he is unconscious, and after such knowledge has the opportunity to avoid injury to him, and in such case the court holds there can be no recovery.

We have attempted to show that the breach of duty of the defendant in each of these several groups is the same, and was a new act of negligence of the defendant, viz: the failure of the defendant to avoid injuring the plaintiff after he knew of his peril when he was either unconscious of it or incapable of extricating himself from it, and that this breach was the proximate cause of the accident while the plaintiff's prior negligence was the remote cause.

The distinction between active and passive negligence made in groups three and four, is new to our law, as well as to the law of negligence generally prevailing in this country and in England. On analysis it does not seem logical. A is crossing a trolley track when hailed by a friend; he stops upon the track to talk and negligently fails to use his senses to discover an approaching car. The motorman could have seen A in his place of peril, unconscious of his danger, and in time, with the exercise of reasonable care, to have avoided injuring him; instead he drives on his car and kills A. The opinion would hold A negligent in being upon the track without using his senses to keep out of the way of the oncoming car, but that as he remained passive and did nothing to change his situation of peril after the motorman had the opportunity to have avoided the accident, he may recover. But if A, instead of stopping on the track had gone on his way across or upon the track and been struck, his negligence would have been active and continued to the accident and would have been concurrent with that of the motorman. It must be conceded that the breach of the motorman's duty would have been the same in each case: a failure to use reasonable care to avoid the accident. We see no reason why it should be available in the one case and not in the other. In neither case has the plaintiff's negligence changed. It never became passive or nonexistent. It remained to the time of the accident. It ceased, in a legal sense, to be a proximate cause of the accident.A was relieved of its consequences because the negligence of the motorman in failing to avoid the accident intervened and became its proximate cause. If this distinction holds, and A be upon a trolley track intoxicated and asleep, his negligence is passive; if awake and walking his negligence is active.

That the general language of the opinion was intended to mean this is manifest by reference to Nichols v.Connecticut Co., 85 Conn. 710, 83 A. 1022, decided at the same time as this case. In that case the plaintiff left the sidewalk and walked a few feet directly upon a trolley track where she stood a moment, unconscious of her peril from an approaching car, which ran into her because of the failure of the motorman to avoid the accident after the peril of the plaintiff and her unconsciousness to her danger could have been known. The court held the case presented an example of passive negligence and within group three. If the jury found that Nehring was walking within two feet of the track when the car was about two hundred feet distant and so continued to about the point of the accident, as Willehmy testified, the only condition taking the case out of the passive group that we observe is the fact that Nehring was in motion. If the jury found Nehring walked diagonally to the track, they might have found that the motorman could have known he was about to cross the track and was unconscious of the approaching car in time to have avoided the accident. If they so found, the opinion presumably places the case in group five, and holds the negligence of Nehring and of the motorman concurrent, and hence the negligence of Nehring was contributory.

Our law on this subject was definite; it resolved actions of negligence based upon discovered peril to a determination of the proximate cause of the injury. It made no distinction between active and passive negligence, such as the opinion makes in groups three and four. In Elliott v. New York, N. H. H.R. Co.,84 Conn. 444, 447, 80 A. 283, we thus stated the rule: "If the defendant's servants, after they knew or ought to have known of Tetro's peril upon the crossing, neglected some duty which they owed him and the performance of which would have avoided his injury, such negligence would be the proximate cause of the injury, and his own negligence in driving upon the track would be only a remote, and not a proximate, cause thereof, and would not prevent the plaintiff's recovery." InSmith v. Connecticut Ry. Ltg. Co., 80 Conn. 268, 270,67 A. 888, we said: "If, after an act of omission constituting negligence on the part of one injured at a railroad crossing, the railroad car or cars might have been so controlled, by the exercise of reasonable care and prudence on the part of those in charge of them, as to avoid the injury, then a failure to exercise such care and prudence would be an intervening cause, and so the plaintiff's negligence no longer a proximate cause, and therefore not a bar to his recovery." Carroll v.Connecticut Co., 82 Conn. 513, 74 A. 897; Elliott v.New York, N. H. H.R. Co., 83 Conn. 320,76 A. 298; Isbell v. New York N. H.R. Co., 27 Conn. 393.

In Southern Ry. Co. v. Bailey, 110 Va. 833, 837, 845,67 S.E. 365, the court, in the course of an admirable statement and analysis of this doctrine, say: "The general rule adverted to is subject, however, to the qualification that where the negligence of the defendant is the proximate cause of the injury, and that of the plaintiff only the remote cause, the plaintiff may recover, notwithstanding his negligence. . . . From that principle arises the well-established exception to the general rule that if, after the defendant knew, or, in the exercise of ordinary care, ought to have known, of the negligence of the plaintiff, it could have avoided the accident, but failed to do so, the plaintiff can recover. In such case the subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negligence of the plaintiff. . . . If it be the duty of a person upon the track of a railway to keep a constant lookout for approaching trains (and of this there can be no question), and if it be the duty of the servants of the company in control of the train to exercise reasonable care to discover the presence of a person upon the track, and if in the exercise of such reasonable care the presence of such person would be discovered, and the person on the track is injured and there be no other fact proved, then it is apparent that the case stated would be one of mutual and concurring negligence, and there can be no recovery. The duty was equal and each is equally guilty of its breach. If, however, it appears that those in control of a train, in the discharge of their admitted duty to keep a reasonable outlook, discover, or should have discovered, a person upon the track, and there be superadded any fact or circumstance brought home to their knowledge, sufficient to put a reasonable man upon his guard, that the person upon the track pays no heed to his danger and will take no step to secure his own safety, then the situation changes and the negligence of the person injured becomes the remote cause or mere condition of the accident, and the negligence of the railroad company the proximate cause, and there may be a recovery."

We relied in Smith v. Connecticut Ry. Ltg. Co.,80 Conn. 268, 67 A. 888, on Grand Trunk Ry. Co. v.Ives, 144 U.S. 408, 12 Sup. Ct. Rep. 679, and on Parkinson v. Concord Street Railway, 71 N. H. 28, 51 A. 268, and these cases are generally cited in support of the doctrine we contend for. Little Rock Ry. Electric Co., v. Billings, 98 C.C.A. 467, 469, 173 F. 903;Wilson v. Illinois Cent. R. Co., 150 Iowa 33, 34,129 N.W. 340; Buttelli v. Jersey City, H. R. E. Ry. Co.,59 N.J.L. 302, 36 A. 700; Inland S.C. Co. v.Tolson, 139 U.S. 551, 558, 11 Sup. Ct. Rep. 653; Washington G. R. Co. v. Harmon, 147 U.S. 571, 582,13 Sup. Ct. Rep. 557; Chunn v. City Suburban Railway,207 U.S. 302, 309, 28 Sup. Ct. Rep. 63; Stearns v.Boston M. Railroad, 75 N. H. 40, 46, 71 A. 21;Little v. Boston M. Railroad, 72 N. H. 61, 62, 502,503, 55 A. 190, 57 id. 920; Quirk v. Rapid Railway,130 Mich. 654, 656, 90 N.W. 673; Baltimore TractionCo. v. Wallace, 77 Md. 435, 441, 26 A. 518; BirminghamRailway, L. P. Co. v. Brantley, 141 Ala. 614,619, 37 So. 698; Schoonover v. Baltimore O. R. Co.,69 W. Va. 560, 73 S.E. 266, 270; Glazebrook v. WestEnd Street Railway, 160 Mass. 239, 240, 35 N.E. 553.

The opinion presumably places this case in group five. This conclusion assumes that the motorman owed a duty to the deceased after he put himself in peril. It fails to distinguish between the original failure of duty of outlook, etc., of the motorman, and his failure of duty to avoid the accident, knowing the peril of Nehring and his unconsciousness of it. That breach of duty intervened after Nehring's negligence in putting himself in peril, and was the last act of negligence preceding the accident, and its proximate cause. The authorities, as a rule, place the cases of peril about to be imminent with those that are imminent, making the issue to depend upon the knowledge of the injuring party that the person subsequently injured is about to put himself in peril from which he can be saved by the reasonable care of the injuring party.

In Smith v. Connecticut Co., 80 Conn. 268, 270,67 A. 888, we decided that it was the duty of the motorman seeing one about to cross the track, to avoid the accident if he reasonably could, and our conclusion was adverse to that expressed regarding group five. We said: "At a moment when it was apparent that the intestate was about to cross the tracks, and when the car could have readily been stopped, it was allowed by an unskillful act of the motorman to shoot ahead with accelerated velocity. This act was the proximate cause of the intestate's death. The negligence of the latter was not." In Carrahar v. Boston N. Street Ry. Co., 198 Mass. 549,552, 554, 85 N.E. 162, a case we rely on in Carroll v.Connecticut Co., 82 Conn. 513, 74 A. 897, the court said: "When the motorman of a car sees a team ahead which is being driven in a straight line `coming in towards' the tracks so that if both keep on a collision will ensue, it is the duty of the motorman to stop his car if the sees that the driver of the team is going on, even if the driver ought not to go on. . . . It might well be that the plaintiff, if he had exercised due care, would have heard the defendant's gong before he did hear it and would not have gone on the track at all, or, if he had got on to it, that he would have driven off it in time to avoid a collision." The jury in this case might have found this precise situation.

In Wilson v. Illinois Cent. R. Co., 150 Iowa 33,129 N.W. 340, the defendant's engineer saw the team driven by the deceased approaching a public crossing in time to have averted the accident, had he used ordinary care in attempting to do so. Yeaton v. Boston M. Railroad, 73 N. H. 285, 286, 61 A. 522; Little v. Boston M. Railroad, 72 N. H. 61, 62, 55 A. 190, 57 id. 920, and Gahagan v. Boston M. Railroad, 70 N. H. 441,450, 50 A. 146, are cases where the defendant had the means of knowing the injured person was about to put himself in peril and the opportunity of avoiding injuring him. They permit a recovery and treat imminence of danger in the same way as actual peril.

In our judgment the case was one for the jury and the verdict ought not to have been directed.

A verdict ought not to be directed unless the evidence is such that but one conclusion can fairly and reasonably be drawn therefrom. Robbins v. Hartford CityGas Light Co., 82 Conn. 394, 74 A. 113. In my opinion there was error and a new trial should be ordered.

In this opinion RALPH WHEELER, J., concurred.