Case v. Clark , 83 Conn. 183 ( 1910 )

The defendant appeals from the refusal of the trial court to set the verdict aside as against the evidence, and also appeals from the judgment for alleged errors of the trial court in declining to charge as requested, in the charge as given, and in certain rulings upon questions of evidence.

The defendant has brought up the entire evidence, consisting of some three hundred and fifty printed pages, to support his claim that the court should have set aside the verdict as against the evidence. Upon an examination of it we are satisfied that there was sufficient evidence to justify the jury in finding that the defendant was negligent, as alleged in the complaint, in running his automobile at too high a rate of speed at the place of the accident, and in not keeping a vigilant lookout ahead, when there was sufficient light and opportunity to enable him to see the deceased and avoid the accident. It would be unprofitable to repeat here the testimony which, in our opinion, was ample to support a verdict that the defendant was guilty of negligence as alleged in the complaint.

Apparently the claim of the defendant, that the verdict should have been set aside, is based mainly upon his contention that the record shows that the negligence of the deceased essentially contributed to cause the accident; and this contention seems to be based upon the claims that the record clearly shows: first, that the deceased violated the city ordinance above cited, in failing to fix, after the beginning of twilight, a lighted red lantern to the red rack or fence which was placed over the opening of the manhole; and second, that it clearly appears that the deceased saw the defendant driving toward him at a rapid rate of speed, apparently unmindful of the presence of the deceased or the location of the rack in the roadway, and made no effort whatever to avoid the approaching automobile, although he had sufficient time to do so after he first saw it.

We think the evidence does clearly show both of these facts, but we do not think these facts necessarily debar the plaintiff from recovering in this action. The violation of the ordinance will not defeat the action unless such violation contributed to cause the injury. If the jury found that no occupant of the automobile was looking ahead as the automobile approached the open manhole, or found that at the time and place of the accident there was sufficient light to enable the defendant to clearly see the obstructing red rack and the deceased standing in the roadway, they may well have found that the absence of a lighted red lantern did not contribute to cause the accident. If the actual situation in the street was just as obvious without a lighted red lantern on the rack as it would have been with one, manifestly the violation of the ordinance had no connection with the accident.

Regarding the effect of the violation of the ordinance, the court said to the jury, among other things, that the burden rested upon the plaintiff to prove that the plaintiff's intestate "was free from negligence and from illegal conduct which contributed to produce the accident"; that "the defendant and his driver . . . had a right to expect that others would comply with the ordinance requiring a lighted red lantern in case of an opening in the street"; that the law was "perfectly clear and settled that if the plaintiff's intestate was violating this ordinance at the time of the accident, such unlawful act, if it directly contributed to the injury, was a conclusive bar to recovery in this action," but that "if there was abundant light about the scene of this accident, and the servant of the defendant could, by the exercise of reasonable care, have seen the plaintiff in the highway, so that the failure to display a red lantern was not related to, or did not in fact aid in producing the injury, then the violation of the ordinance by failure to display a red lantern, if such was the fact, would not excuse the defendant from being guilty of negligence."

Under these instructions the jury, in rendering a verdict for the plaintiff, must have found that the absence of a lighted red lantern upon the rack did not contribute to cause the accident. There was sufficient evidence before them to support that conclusion.

Regarding the duty of the deceased to leave the roadway and avoid the automobile when he saw it approaching, the court instructed the jury that "if the deceased saw the automobile coming when the automobile was a hundred and fifty feet away from him, as was testified to by one of the plaintiff's witnesses, and shouted to it to keep out of the way, it was his duty to have removed himself to a safe position, where he would not be struck by the automobile, if he could have done so by the exercise of reasonable care after the danger was or should have been apparent to him. The deceased was bound to exercise reasonable care to protect himself from injury, and if he knew the automobile was coming, it was his duty to exercise reasonable care to get out of the way of it; that is, the moment that he saw, or as a reasonable man ought to have apprehended, danger from it."

These instructions were certainly sufficiently favorable to the defendant. There is no rigid rule of law which made it negligence per se for the deceased to remain at the rack after he saw the approaching automobile, even though he was aware that the occupants of the automobile had not observed him or the obstructing rack at the manhole, and was aware that he might be injured by remaining where he was. The law only required him to act as a reasonably prudent person would have acted under similar circumstances. After seeing the approaching automobile he had but a short time to decide whether he should abandon his position, and thus secure his own safety, or whether, having perhaps in mind the danger in which his brother and the occupants of the automobile might be placed by such a course, he should remain at his post and call out to, or signal, the automobile driver, in case he continued to fail to notice the obstruction in the roadway. He may have known that the occupants of the automobile could see that the roadway was impassable at this point, as clearly as they could had a lighted red lantern been displayed. He may reasonably have supposed they would observe the obstruction before they reached it, as others had done, or that if they failed to do so, that they would heed his call or signal and turn aside as others had. It was a question of fact for the jury, fairly submitted to them, whether the conduct of the deceased, in the situation in which he was placed, was reasonable. The jury must have decided that it was. Such decision was not against the evidence. The court did not err in denying the motion to set aside the verdict.

The so-called reasons of appeal from the judgment are not properly assigned. They should state the claimed errors of the trial court. General Statutes, § 798. To state, as a reason of appeal, "whether or not the court erred" in stated rulings or decisions, as is done throughout this appeal, is not to state an error of the trial court. But disregarding these defects, since no objection is made to them, we think the appeal from the judgment presents no sufficient grounds for granting a new trial.

The charge to the jury substantially complied with most of the defendant's requests to charge. If it can be said that the court omitted to instruct the jury as to the hour of sunset, or the time of the commencement of twilight, on the day in question, such omission was immaterial. There was no dispute but that the accident occurred after five o'clock in the afternoon, and some three-quarters of an hour after sunset, and the court practically told the jury that there was no question but that it was twilight any time after five o'clock.

We deem it unnecessary to repeat or discuss here the numerous parts of the charge complained of in the appeal. We find no material error in the instructions given.

The rulings upon questions of evidence complained of, furnish no ground for a new trial. Generally they were upon matters of slight importance, or upon questions the permitting or forbidding of which was largely within the discretion of the trial court.

The refusal of the trial judge to submit to the jury the written interrogatories propounded by the defendant was not an improper exercise of his discretion.Freedman v. New York, N.H. H.R. Co., 81 Conn. 601,612, 71 A. 901.

The court might properly have reproved plaintiff's counsel for using in his argument the language set forth above in the statement of facts, or might properly have called the attention of the jury to the impropriety of these remarks. In the absence of any complaint or objection by defendant's counsel at the time they were made, we think a new trial ought not to be granted on account of such objectionable language of the plaintiff's counsel.

The request for a correction of the finding is denied.

There is no error.

In this opinion the other judges concurred.