Kotler v. Lalley , 112 Conn. 86 ( 1930 )

The plaintiff's case was based upon the claim that the decedent Mary Maxwell while crossing Clinton Avenue, Bridgeport, on foot, in the evening of December 28th, 1928, was struck by an automobile driven in a careless, reckless and negligent manner by the defendant, dragging her a considerable distance before the body fell to the roadway and thereafter failing to slacken his pace or stop. It was alleged that the defendant was negligent in that the car was operated at an unreasonable and unnecessary speed having regard to the width, use and condition of travel upon the highway; that the defendant failed to have the car under control, and failed to avoid striking the decedent when he had a last clear chance to do so. It was further alleged that the decedent was free from contributory negligence. The decedent suffered serious bodily injuries from which she died three days thereafter, without having made, so far as appears, any statement.

It is agreed that there was no eyewitness of the collision between the car and the decedent, save the two parties involved. At the time of the trial the decedent was dead and the defendant was not in court, his father stating that he was "around Bridgeport somewhere" and his version of the affair, obtainable only from statements previously made to others, contains no reference to decedent's conduct. Upon the presentation of the plaintiff's evidence, a motion for nonsuit was granted by the court, and judgment entered for the defendant.

In denying a motion to vacate this judgment the court said that giving the most favorable construction to the plaintiff's evidence, it failed to show either a prima facie case of negligence on the part of the defendant or reasonable care on the part of the decedent.

A review of the evidence leads us to the conclusion that the jury might reasonably and logically have found the defendant negligent. We think the trial court failed to accord the force which the law gives to the conduct of the defendant and the inferences and presumptions legally created thereby.

The defendant after striking the decedent, a woman fifty-three years of age, with his car, and knowingly carrying her a long distance on the front of the car, not only failed to stop, but when the body fell to the pavement he sped away and escaped without any attempt whatsoever to ascertain the result of what he had done or to render any assistance, but left her on the street to die or exposed to further injury by cars proceeding in that direction. Such conduct was reprehensible to the last degree and merits the severest condemnation.

A jury is entitled to entertain certain presumptions and draw inferences of fact from such conduct in the nature of admissions against the defendant.

We have recently had occasion to consider these upon a very similar state of facts in the criminal case of State v. Ford, 109 Conn. 490, 146 A. 282, where we said at page 496: "The conduct of the accused in leaving the bodies of the girls [he had struck] lying in the road while he sped on with his car . . . may be considered by the trier in determining his guilty since it tends, unexplained, to prove a consciousness of guilt."

In that case as in this, the defendant failed to take the stand to explain the occurrence, and we said (p. 497) and now reaffirm, that "the privilege of refraining from testifying, if he so elect, does not protect him from any unfavorable inference which may be drawn by his triers from his exercise of the privilege."

While defendant's brief does not specifically concede the negligence of the defendant, it does recognize the force of what has been said and adopts the fact of his negligence as a premise in the discussion of contributory negligence of the decedent. Without further reference to this feature of the case, we turn to the second element of proof required of the plaintiff, viz.: that the decedent was free from contributory negligence.

There is no direct evidence on this point and from the circumstances disclosed at the trial it is sufficiently obvious that no evidence of the conduct of the decedent was obtainable, since the decedent was dead and the defendant who could have spoken chose not to do so.

Upon the legal situation developed by such a state of facts, there is a marked divergence of view in different jurisdictions. In some it is said that where there is no obtainable evidence as to due care on the part of the injured party by reason of his death, a presumption of due care is raised from the natural instinct of self-preservation, and the reason for the rule is said to lie in the injustice of the common-law rule requiring as a condition of recovery that the plaintiff shall prove the decedent's freedom from contributory negligence. It is argued that where the defendant's act has caused the death thus depriving the plaintiff of evidence, and there were no eyewitnesses or any direct testimony as to the decedent's conduct, the court should recognize the natural instinct of self-preservation and the instinctive avoidance of bodily harm and suffering and so infer or presume that the decedent exercised due care until the contrary appears. This view seems to obtain in many States, while in others the common-law rule has been changed by statute so as to in effect put upon the defense in such cases, the burden of showing decedent's contributory negligence.Chicago Alton Ry. Co. v. Wilson, 225 Ill. 50,80 N.E. 56; Parsons v. Du Pont De Nemours Powder Co.,198 Mich. 409, 104 N.W. 413, 415; Savage v. RhodeIsland Co., 28 R. I. 391, 67 A. 633, 636; Cogdell v.Wilmington W. R. Co., 132 N.C. 852, 44 S.E. 618; Baltimore P. R. Co. v. Landrigan, 191 U.S. 461,471, 24 Sup. Ct. 137; Texas Pac. Ry. Co. v. Gentry,163 U.S. 353, 366, 16 Sup. Ct. 1104. This doctrine has never been recognized in this State, but on the contrary has been definitely rejected; Mullen v. MohicanCo., 97 Conn. 97, 100, 115 A. 685; Tracy v. Welch,109 Conn. 144, 149, 145 A. 662; and we have no statutory provision as in some other States to enforce the obviously just requirement that the burden of proof in this particular class of cases, be put in effect upon the defendant.

While we have held probabilities from slight circumstantial evidence in some cases to justify a finding of due care, as suggested in the Mullen case, we still adhere to the common-law doctrine that the burden rests upon the plaintiff to establish due care. When the circumstances point as strongly to the absence as to the existence of due care or point in neither direction a nonsuit must be granted. Mullen v. MohicanCo., supra, at page 101, citing Wiwirowski v. LakeShore M. S. Ry. Co., 124 N.Y. 420, 425;26 N.E. 1023.

The evidence in the present case is bare of any fact rendering it probable or improbable that the decedent exercised due care. Indeed, we find nothing which points in either direction and are forced to the conclusion that the plaintiff's proof was fatally defective in this respect.

There is no error.

In this opinion MALTBIE, HINMAN and BANKS, Js., concurred.