Tullock v. Connecticut Co. , 94 Conn. 201 ( 1919 )

All the reasons of appeal have been abandoned by not being pursued, save only that which charges error in the denial of the defendant's motions to set aside the verdicts and grant new trials.

The evidence, in whatever light it be viewed, unmistakably discloses that the plaintiffs' intestates were guilty of negligence in their choice of a place in which to perform the work in which they were engaged at the time they were injured, and in the manner in which they were performing it. A contrary conclusion could not reasonably have been arrived at by the jury. They could not, therefore, properly have returned the plaintiffs' verdicts which they did return, unless it was through the application of some phase of the doctrine of the last clear chance to the situation as it was found to have existed. It is apparent that the only phase or phases of that doctrine, within which the circumstances of the case could by possibility bring it, are those which were under consideration in connection with the second and third of the classes of cases defined and discussed in Nehring v. Connecticut Co., 86 Conn. 109 (84 A. 301, 524) at pp. 120, 123 et seq. These two classes comprehend those where the injured person has negligently come into a position of peril, from which, as is apparent to the injuring person, he either cannot, in the exercise of due care, or will not, avail himself of means of escape in season to save himself from harm, and where, furthermore, he thereafter does not by his active negligent conduct materially change the situation. Of such conditions we said, that if the injuring person becomes aware of the other's peril in season for him, in the exercise of reasonable care, to save him from harm, it is the former's duty to do so, and that a failure on his part to perform that duty is an act of negligence which, by reason of his superior position and greater opportunity and its peculiar relation to the resulting injuries, entitled it to be regarded as their sole proximate cause, the other person's negligence in coming into the position of peril and in remaining oblivious of its continuing existence, being relegated to the position of a remote, and, therefore, not a concurring proximate cause.

So far the Nehring opinion had confined its discussion to cases where the injuring person seasonably became aware in fact of the other's peril. Later on it took up for consideration those cases where such actual knowledge of the injured one's peril is not established, but facts are shown establishing that he ought, in the exercise of due care, to have known it. With respect to such situations we held that those things which one, in the exercise of due care, ought to have known, furnished the foundation for responsibility for conduct thereafter in the same manner and to the same extent as did actual knowledge, and that the rule in each class of cases was in effect the same, to wit: that if the injuring person either actually becomes aware or, in the exercise of due care, ought to have become aware of the danger to which another has negligently exposed himself, from agencies or conditions within the former's control, and thereafter fails to exercise that control as he might and as reasonable care under the circumstances would dictate that he should, his negligent failure in that respect will be regarded as the sole proximate cause of any resulting injury not further contributed to by the subsequent actively negligent conduct of the other person, and not merely as negligent conduct on the former's part co-operating and concurring with the latter's negligence in creating or heedlessly continuing his exposure as proximate causes of the injury which results.

This principle was restated in the subsequent case of Hygienic Ice Co. v. Connecticut Co., 90 Conn. 21,23, 96 A. 152, and again in Fine v. Connecticut Co.,92 Conn. 626, 631, 103 A. 901, where a succinct statement was attempted to be given of the four conditions which we held must co-exist to enable the plaintiff to avail himself of the last clear chance doctrine under circumstances similar to those we have now under consideration. Those conditions, it was there said, were: "(1) that the injured party has already come into a position of peril; (2) that the injuring party then or thereafter becomes, or in the exercise of ordinary prudence ought to have become, aware not only of that fact but also that the party in peril either reasonably cannot escape from it or apparently will not avail himself of opportunities open to him for doing so; (3) that the injuring party subsequently has the opportunity by the exercise of reasonable care to save the other from harm; and (4) that he fails to exercise such care."

The word "subsequently," as used in the third condition, obviously means subsequent to the acquisition of the knowledge referred to in condition two, or to the time when that knowledge ought, in the exercise of due care, to have been obtained.

This review has been called out by criticisms made by defendant's counsel, directed at the inclusion, within the terms of the statement of conditions above recited, of cases where the injuring person does not become aware in fact of the other's peril in time to save the latter by the exercise of reasonable care commensurate with the circumstances, but ought to have become aware of it had he acted as a reasonably prudent man should; and especially where also, as here, the negligence of the injured party in remaining oblivious to his exposure continued to the end. The chief criticism appears to be that by such inclusion the injuring person might be held liable, although his fault consisted only of negligent inattention, and therefore partook of the same quality as that of the injured person.

There is no doubt that counsel can find support for their contention in the utterances of courts which have clung more tenaciously than have we to the notion, which has had much vogue in many quarters, that where there has been concurring negligence, whatever the relation each party bore to the other and the negligence of each to the result as its contributing cause, there can be no recovery. We have recognized that inherent injustice might well result from a strict application to all cases of such an unyielding doctrine without observing distinctions based upon the quality of the several acts of causation arising from the superior position occupied by the actor, his greater opportunity, and the more intimate relationship of his negligence to the event; and have intentionally adopted a rule alleviating somewhat the burden of suffering cast by the stricter rule upon persons injured, under certain circumstances, through the fault of others than themselves, in part, and one more in accord with just and humane considerations. This rule calls for the exercise at one's peril of reasonable care in respect to both observation and action for the safety in positions of danger of others who, during the vitally important period in which emergency-action might reasonably be expected, and would be effectual, do not themselves make a further contribution of negligent action by materially changing the situation already created. Nehring v. ConnecticutCo., 86 Conn. 109, 121, 84 A. 301, 524.

This rule distinctly recognizes that within the field of application of the last clear chance doctrine, there well may be cases where negligence of inattention and obliviousness of surroundings on the part of the person injured continued even to the end. Thus, for example, the specific rules laid down in Fine v. Connecticut Co.,92 Conn. 622, 103 A. 901, distinctly comprehend cases where a person who has come into a position of peril, fails to become aware of that fact as in the exercise of ordinary care he should, and, therefore, fails to take steps to escape from it. Nehring v. Connecticut Co.,86 Conn. 109, 120, 84 A. 301, 524. In all such and similar cases, the rules neither ignore the presence of that negligence, nor disregard it as having been in some measure productive of the resulting injuries. They simply say that under certain circumstances, to wit, those stated therein, negligence deserves to be relegated to the field of remote cause and therefore not to be regarded in the proper legal sense as a proximate one.Nehring v. Connecticut Co., 86 Conn. 109, 116,84 A. 301, 524.

Defendant's counsel further urge in support of their appeal, that the rule of the Nehring and subsequent cases, if it is to stand, should be limited to conditions where the duty to know is clear and obvious, or, as otherwise stated, where the opportunity to see and know is so clear that the person must have known had he used his senses. We fail to appreciate the basis of the distinction thus attempted to be made between the degrees of proof required, or rather in the practicability of its application to given cases. The jury must, of course, find that the means of knowledge were so open to the injuring person that he ought in the exercise of ordinary care to have known, before he can be held accountable for non-action. We are unable to discover what more can reasonably be required, or what sound reason there is for requiring more.

Coming, now, to the application of the rules hereinbefore recited, to the evidence certified to this court, we find that there is none from which it could reasonably have been found that the defendant's motorman either saw the plaintiffs' intestates, or became aware of their or their companion's presence in a situation of danger, until an instant of time before they were struck and when it was too late to avoid injuring them. If, therefore, the court's denial of the motions to set aside the plaintiffs' verdicts rendered was justified, it must have been that the evidence failed to furnish reasonable foundation for a finding by the jury that the defendant's representative, operating its car, ought, in the exercise of due care, to have become aware that emergency-action on his part was necessary if the safety of persons endangered by his proceeding on his way was to be secured, in season for him to have saved them by the exercise of reasonable care commensurate with the circumstances. Examining the evidence we find ourselves unable to say that there was such failure in the evidence before the jury.

There is no error.

In this opinion the other judges concurred.