Swayne v. Connecticut Co. ( 1913 )

This action was brought to recover damages for injuries to the person of the plaintiff and to his horse and wagon. The horse was being driven by the plaintiff, and the damages are alleged to have been received as the result of a collision between the wagon of the plaintiff and a car of the defendant company.

The allegations of negligence are that the defendant's servants were operating the car at a too rapid rate of speed, and failed to stop the car so as to avoid running into the wagon of the plaintiff.

The question raised on the appeal is confined to the action of the trial court in directing the jury to render a verdict for the defendant, and in denying the plaintiff's motion to set it aside.

From the uncontradicted facts it appears that the defendant operated a double-track line of street railway through Main Street from New Haven to East Haven. On the night of January 8th, 1912, at about nine o'clock in the evening, the plaintiff was driving a horse attached to a covered milk wagon on Main Street, in an easterly direction, and when at a point east of Huntington Avenue he was struck by a car moving in an easterly direction along the defendant company's southerly track. Main Street is substantially forty-one feet in width, and in the middle are laid the defendant's tracks, which are about fourteen feet in width, leaving about thirteen and one half feet of traveled roadway on each side of the tracks. The tracks are substantially straight for some distance, and a car can be seen all the way to the curve of Beacon Avenue, which is over six hundred feet west of the point of the collision. No streets cross Main Street from Beacon Avenue for a distance of two thousand feet or more to the east, and only two open into it, one of which is Huntington Avenue. Within this distance there are only two or three houses on Main Street. Huntington Avenue is about five hundred feet east from Beacon Avenue. Beacon Avenue is at the top of Beacon Hill, and Main Street descends easterly from Beacon Avenue at a grade of from three and one fourth to three and one half per cent. To the point where the plaintiff sustained his injuries. The night in question was dark and sleeting. The highway was icy, and there were ruts. The defendant's car was equipped with a big searchlight, which was lighted. The car stopped at Huntington Avenue to let off a passenger. The car was running in a country district with but a few houses, upon a straight road with no intersecting roads.

The plaintiff's servant, John Shute, testified that he was driving another wagon about a wagon's length in front of the plaintiff; that he saw the headlight of the car when it turned the corner at Beacon Avenue; that he immediately called to the plaintiff warning him of its approach, and the plaintiff waved back that he understood. The plaintiff testified that when Shute called to him he was driving rapidly along the road in the wheel tracks in the snow about twelve to fourteen inches south of the southerly rail; that when the car was about sixty feet away from him he started to turn to the right; but that his wagon unexpectedly slued and brought his wheels nearer to the track, and that before he could get out of the way the car struck his wagon.

The defendant offered testimony tending to prove that after the stop at Huntington Avenue was made, and when the car had proceeded two or three car lengths, the motorman discovered the plaintiff's team ahead on the west-bound track, and rang the gong and did everything possible to prevent an accident, and that the plaintiff turned south across the east-bound track, and was struck by the car. There was conflicting evidence as to whether the plaintiff in fact crossed the track in front of the car, and if the case turned upon this claim of the defendant there was evidence to have gone to the jury.

There is no doubt of the power of the trial court to direct a verdict upon the evidence presented in a case when the jury as reasonable men, informed as to the law governing the facts in issue, could not have reached any other conclusion than that embodied in the verdict directed. Farrington v. Cheponis, 84 Conn. 1, 4,78 A. 652. Applying that rule to the present case, it is clear that the decision of the Superior Court was correct.

If the testimony of the plaintiff's witness Shute was true, it appears that the plaintiff was notified of the approach of the car when it was several hundred feet away. If that were true he did not turn away from the track at once, but, as appears by his own testimony, proceeded along until the car was about sixty feet away, when he attempted to turn; but in so doing his wagon slued, which brought it upon the track, and the rear end of it was struck by the car. The plaintiff took his chances and remained upon the track, or in close proximity to it, when he had ample time and opportunity to get out of the way of the car, which he knew was approaching. He made a mistake in his calculations because his wagon slued onto the track when the car collided with it. From the corner of Beacon Avenue down to the place of the accident the street was practically straight, with nothing to obstruct the view. The plaintiff, from the information received, must have known of the approaching car, but did not make any reasonable effort to avert the danger until it was too late. The burden of proving the alleged negligence of the defendant, and his own exercise of due care, rested upon the plaintiff. Brockett v. Fair Haven W. R. Co., 73 Conn. 428, 433, 47 A. 763; Morris v.Winchester Repeating Arms Co., 73 Conn. 680,49 A. 180; Fay v. Hartford Springfield Street Ry. Co.,81 Conn. 330, 335, 71 A. 364. Upon the question of contributory negligence, that burden could be sustained only by showing that the plaintiff made such use of his faculties and his senses as an ordinarily prudent man would under such or similar circumstances. It is manifest that no injury would have been sustained if the plaintiff had been in the exercise of proper care. Morse v. Consolidated Ry. Co., 81 Conn. 395, 71 A. 553.

If, on the other hand, the testimony of Shute were not credible, and we take the testimony of the plaintiff that the car was within sixty feet of him when he was notified by Shute and saw it and attempted to turn out, there is no evidence upon which the jury could find that the defendant was negligent as alleged. It was alleged in the complaint that the collision was caused by the negligence of the employees of the defendant who operated the car "at a too rapid a rate of speed." The only testimony offered by the plaintiff which referred directly to this allegation was that of the plaintiff himself, who stated that the car "was coming like a chain of lightning down that hill, which they always do." This evidence was not of any importance in determining the speed of the car when the collision actually took place. The plaintiff did not see the car, but only the searchlight coming directly toward him. He had therefore no manner of judging of this speed. "That hill," referred to in the statement, was Beacon Hill, several hundred feet away from the point where the collision actually occurred. The expression "like a chain of lightning," was entitled to but little weight as a definite statement of the speed of the car. Foley v.Boston Maine Railroad, 193 Mass. 332, 335,79 N.E. 765.

Four witnesses, testifying upon the speed of the car, concurred in saying that the car was stopped at Huntington Avenue to discharge a passenger; that it had just started and was running at a speed of eight or ten miles an hour when it struck the wagon. There was conflicting testimony as to the distance the car ran after the accident. The estimates as to the distance ranged from one to two car lengths to one estimate of five hundred to six hundred feet. The evidence shows that the plaintiff and his wagon were not upon the defendant's track upon which the collision occurred, until after the car stopped at Huntington Avenue. There was no evidence that the car could have been stopped in a shorter distance than in fact it was stopped, nor that it could have been stopped before it struck the wagon, after the motorman saw, or should have seen, the obstruction upon the track. The motorman and three disinterested witnesses testified that the car stopped at Huntington Avenue, which is only two or three car lengths from the point where the collision occurred, and were not contradicted as to this fact. Had the jury upon the evidence found the defendant negligent in operating its car at too high a rate of speed at this place, the verdict would properly have been set aside.

But from the plaintiff's own testimony it appears that even if the car were going at too high a rate of speed, that fact was not the proximate cause of the accident. He testified that before he saw the car he was driving along upon the right side of the road twelve or fourteen inches from the track, and that in trying to get farther away from the track, when he saw the car approaching and sixty feet away, he turned so quickly to the right that the wagon slued around toward the track, so that the corner of it was struck by the car. The speed of the car was not the proximate cause of the collision. It would have occurred however slowly the car was moving. "Negligence is only deemed contributory when it is a proximate cause of the injury. That only is a proximate cause of an event, juridically considered, which, in a natural sequence, unbroken by any new and intervening cause, produces that event, and without which that event would not have occurred. It must be an efficient act of causation separated from its effect by no other act of causation." Smith v.Connecticut Ry. Ltg. Co., 80 Conn. 268, 270,67 A. 888. At the place where the accident occurred there was ample room to drive along the roadway.

Upon any view of the evidence the plaintiff failed to make out a case, and a verdict for the defendant was properly directed.

There is no error.

In this opinion HALL, C. J., PRENTICE and THAYER, Js., concurred.