Biedrzicki v. O'Keefe

The jury might reasonably have found that the injuries from which the plaintiff's decedent, a boy, died, were caused by the defendant's negligence in driving his automobile upon the boy while he was crossing a highway. Only two assignments of error merit consideration. They relate to the same subject-matter. At the conclusion of the charge plaintiff's attorney requested the court to charge the jury in accordance with his requests one and thirteen, upon the last-clear-chance principle. The court responded: "Well, it has rather a remote relation I think to the evidence from either side, but, however, it is no doubt the law, at least the thirteenth," and thereupon read this request. Neither party offered evidence to prove facts which would make this principle applicable. Further, these requests did not accord with our rule of law, neither did the charge made in explanation of the request read, in that it omitted the second of the conditions necessary to bring a situation within the operation of the last-clear-chance principle, viz., that the defendant became, or in the exercise of ordinary prudence ought to have become aware, not only of the position of peril of this boy, but also that he either reasonably could not escape from it or apparently would not avail himself of opportunities open to him for so doing. Fine v. Connecticut Co., 92 Conn. 626,631, 103 A. 901; Nehring v. Connecticut Co.,86 Conn. 109, 84 A. 301, 524.

There is error and a new trial is ordered.