Brody v. Dickie ( 1923 )

The plaintiff, in the first instance, seeks a correction of the finding of the trial court by having certain paragraphs stricken out and certain other paragraphs added. This court has repeatedly stated that it "will not correct a finding of facts unless the record discloses that it includes matters found to be facts without evidence, or fails to include material facts which were admitted or undisputed. The determination of the trial court on conflicting evidence, or on the weight or effect of evidence, will not be disturbed."Hayward v. Plant, 98 Conn. 374, 379, 119 A. 341, 343;Hine v. McNerney, 97 Conn. 308, 311, 116 A. 610.

An examination of the record in the present case clearly demonstrates that the finding states no fact which was found without evidence; nor does it omit to state a material fact which was admitted or undisputed.

The plaintiff assigns as error the failure of the trial court to find and to hold (1) that the propelling by the defendant of his truck into such close proximity to the car upon which plaintiff's intestate was riding, as to create a reasonable apprehension on the part of the intestate that a collision was imminent and inevitable, impelling him to jump to avoid the consequences of such collision, was negligence on the part of the defendant; and (2) that the defendant in the exercise of reasonable care should have seen the companion of the decedent, who was riding on the same running-board, jump off just previously to the decedent doing so, and was therefore bound to apprehend that the decedent would do likewise and should have acted to prevent injury from such anticipated action.

The plaintiff claims "that a person who is placed in a position of peril by another's negligence, cannot be regarded as being guilty of contributory negligence if he takes any steps to protect his own safety, even though having taken some other course he might have avoided injury." The authorities seem to be in practical agreement on this point. Huddy on Automobiles (5th Ed.) p. 494. "One confronted by sudden danger from a rapidly moving automobile is not guilty of contributory negligence because, in an effort to get out of the way, he acts contrary to what was expected of him by the driver." Kuchler v. Stafford, 185 Ill. App. 199. But the rule thus invoked by the plaintiff is not applicable to the facts found in this case; and these facts negative the second ground of error above. The trial court was hence right in holding that there was nothing in the situation of the parties, as disclosed in the finding, to charge the defendant with "a duty to see said Raski [the companion of the decedent, who was also riding on the running-board and who had jumped just previously], or for any other reason to anticipate that the decedent might suddenly precipitate himself in the path of the truck"; and that "the impossibility of avoiding him [plaintiff's intestate] was due to the close proximity of the point at which the decedent alighted in the street to the front of the truck, and not to excessive speed, lack of control such as reasonable care would dictate under the circumstances, or other negligence of the driver."

The conclusion of the trial court as to defendant's failure to exercise due care, is not in violation of any rule or principle of law, nor is it in conflict with the rules of logic or reason, or contrary to or inconsistent with the subordinate facts, and hence it cannot be reviewed by us.

There is no error.

In this opinion the other judges concurred.