Radwick v. Goldstein , 90 Conn. 701 ( 1916 )

The reasons of appeal assign as error the trial court's denial of the plaintiff's motion to set aside the verdict and grant a new trial, its refusal to charge, as requested, in three particulars, and several portions of the charge as given.

Two radically variant versions of the circumstances leading up to and attending the accident, which befell the plaintiff's intestate, were given by the witnesses produced at the trial. The plaintiff introduced evidence in support of one which pointed unmistakably to negligence on the part of the defendant as its sole contributing cause. The defendant, on the other hand, presented evidence which, if found true, quite as unmistakably established that the accident occurred through the fault of the plaintiff's intestate and without fault on the part of the defendant. The decisive question for determination, therefore, was one as to which of the these versions was the correct one. Its answer involved weighing conflicting evidence and passing upon the credibility of witnesses and testimony, and it was thus brought distinctly and peculiarly within the jury's province. An examination of the conflicting testimony satisfies us that its determination in favor of the defendant was not so unreasonable as to have justified the trial court in setting aside its verdict.

The requests to charge, which were not complied with, consisted of argumentative language taken from opinions of this court, and used in those opinions in the discussion of specific situations before the court, and the application of accepted general principles to them, and not in the statement of those principles. The court is under no duty at any time to charge in the language of requests. Its duty is performed when it gives instructions calculated to give the jury a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and suited to their guidance in the determination of those issues.McGarry v. Healey, 78 Conn. 365, 367, 62 A. 617. Particularly is a court not called upon to, and should not, charge in the language of requests such as those under consideration, which partake more of the character of an argument to an end than of a judicial utterance intended to enlighten the jury by clear, concise and impartial language. State v. Rathbun, 74 Conn. 524,528, 51 A. 540. Of extracts from opinions generally we said in Allen v. Lyness, 81 Conn. 626, 629,71 A. 936, that it is seldom that they are adapted for use in instructing the jury, and that is emphatically true of the present. There is nothing of legal pertinence contained in the requests the court failed to give which was not adequately covered by the instructions given.

Complaints are made of the court's instructions touching the matter of the defendant's speed, and the bearing and effect of the provisions of statute concerning the speed of motor-vehicles found in chapter 85 of the Public Acts of 1911, as amended by chapter 204 of the Public Acts of 1913. As we understand the brief of counsel, these complaints are two in number. The first is, that the jury were told that the effect of the provision contained in the first sentence of § 13, regarding speed in excess of twenty-five miles an hour for one eighth of a mile, was to make such rate of speed, when established, prima facie evidence, and prima facie evidence only, of negligent and improper driving, which could be overcome by proof that it was reasonable and proper speed under the circumstances, and were not told that it was sufficient evidence to establish liability for consequent injuries whatever the circumstances might be shown to have been.

Clearly the statute did not either forbid a rate of speed in excess of twenty-five miles an hour, or make such speed conclusive evidence of negligent driving. Neither did it make a person operating a motor-vehicle in excess of that speed an insurer against all mishaps which might arise in the course of such operation. It simply made the excess of speed prima facie evidence of unreasonable and improper driving, and prima facie evidence can always be overcome by proof to the contrary.

The second criticism of this portion of the charge is that it ignored and deprived the plaintiff of the benefit of the last sentence of § 13, where a rate of speed in excess of three miles an hour, when passing a street-railway car that is stationary or about to stop, on the same side of the car on which passengers are ordinarily received and discharged, is made prima facie evidence of improper operation in violation of § 11 of the Act. It is true that the court did in the passage referred to, and in its instructions throughout, practically ignore this provision of the statute beyond its reading, and that one of the allegations of negligence in the complaint charges negligence in respect to the matter covered by it; but there was nothing whatsoever in the evidence which tended to establish a causal connection between the rate of speed at which the trolley-car was passed and the accident which occurred shortly afterward. The intestate was a traveler on the highway, entirely independent of the car, and it entered in no way into the situation out of which the accident arose. Its presence was an incident wholly unrelated to the tragedy enacted in its vicinity, and the rate of speed at which it was passed by the defendant possessed no more significance than would the same rate of speed had the car not chanced to be there. Of whatever violation of law the defendant may have been guilty in going by the car, it could not be said upon the evidence that it contributed to the collision which followed, or that such collision was in any way due to the car's presence. That being the case, the plaintiff was not entitled to instructions involving the statutory provision in question, and was deprived of no benefit which was rightly hers by the court's failure to so instruct. Instructions should be confined not only to the issues, but to matters which may be material to the determination of those issues upon the facts as they reasonably may be found in view of the evidence. Rosenstein v.Fair Haven W. R. Co., 78 Conn. 29, 31,60 A. 1061.

One of the reasons of appeal charges that the court erred in not giving the plaintiff the benefit of the so-called "last clear chance" rule, and another that it erred in omitting to instruct the jury that, even though the plaintiff's intestate was negligent, if the defendant, by having proper control of his automobile, might have avoided the collision, the plaintiff was entitled to recover. These two alleged errors are closely related, and may be considered together.

The court wisely refrained from giving the instruction whose omission is thus complained of. It would not have been a correct statement of the law, if given. It is not true that one whose negligence entered into the situation from which injury to him resulted, may under all conditions recover from another who, by the exercise of ordinary care, could have avoided the injury. Such a principle would cause havoc with the accepted doctrine of contributory negligence, and we have never given countenance to it. The contributory negligence doctrine remains with us undistributed. Whenever there is concurrent negligence of the parties of such a character that the negligence of each is to be regarded as a proximate cause of the resulting injury, there can be no recovery. It is only when the negligence of the plaintiff is not to be regarded as a proximate cause that he is permitted to recover, and that is upon the ground that there is not on his part negligence contributing in any true sense to produce the resulting injury. Nehring v. Connecticut Co., 86 Conn. 109, 116,84 A. 301, 524.

In so far as the court's alleged error in failing to give instructions enabling the plaintiff to take advantage of the so-called "last clear chance" rule is concerned, it is to be noticed, first of all, that the circumstances shown in evidence, as claimed by either party, furnish no opportunity for its application. Upon the plaintiff's version of them there was no possibility of a reasonable finding of negligence on the part of the deceased, while upon the defendant's, the decedent's negligent conduct continued to the end, and was an efficient cause of the final catastrophe. Nehring v. Connecticut Co., 86 Conn. 109,122, 84 A. 301, 524. No middle ground was reasonably open to the jury. Furthermore, it is not quite true that the court failed to charge upon this subject. Commenting upon the decedent's duty in self-protection, it told the jury that if he failed to observe the precautions specified as growing out of that duty, the plaintiff could not recover "unless the defendant, after he saw the intestate's danger, might, by the use of reasonable care, have avoided the collision." Here is a distinct recognition of the defendant's liability in the application of the so-called "last clear chance" rule, even more broadly stated than the rule justifies.

The court's instructions in respect to the decedent's duty as a traveler in the highway on a bicycle, and the test to be applied in judging whether or not it had been performed, are made the subject of several assignments of error. These instructions held him to the duty of being watchful in the direction in which he was going, of making reasonable use of his senses, of having reasonable control of his wheel, of riding at a reasonable rate of speed under the circumstances, and of exercising ordinary care both in the avoidance of dangers which were known to him and in the discovery of dangers or conditions of danger to which he might become exposed. There was nothing novel or improper in this statement of familiar and oft repeated principles. Fay v. Hartford Springfield Street Ry. Co., 81 Conn. 330,336, 71 A. 364; Snow v. Coe Brass Mfg. Co., 80 Conn. 63,70, 66 A. 881; Metcalf v. Central Vermont Ry. Co.,78 Conn. 614, 621, 63 A. 663.

Other reasons of appeal of minor importance and not well taken do not call for discussion.

There is no error.

In this opinion the other judges concurred.