Montambault v. Waterbury & Milldale Tramway Co.

The case is one of conflicting evidence, so plain that there was not the slightest justification for the appeal from the denial of the motion to set aside the verdict. The taking of an appeal upon this ground, thus compelling the printing of the entire evidence, was an abuse of the right of appeal.

The issue of the negligence of the defendant as well as the issue of the contributory negligence of the plaintiff, were, upon the evidence offered by the parties, conclusions for the jury to draw and not conclusions for the court to draw as matter of law; and therefore the error assigned in the failure of the court to charge plaintiff's eleventh request, that the plaintiff was not guilty of contributory negligence, is not well taken.

The court charged the jury: "I will state to you that there is another fact that must be taken into consideration by you in determining whether or not the plaintiff's conduct was that of a reasonably prudent man, and that is whether it was reasonably necessary for him to go between the cars in order to get on the car in question." The plaintiff's assignment of error as to this portion of the charge must be sustained. The determination of whether the plaintiff's conduct was that of a reasonably prudent man was for the jury. The court's restriction of this determination to the jury's finding "whether it was reasonably necessary for him to go between the cars," was the setting up by the court of the standard of reasonable care as applied to this particular case. That the court could not do. It was an invasion of the province of the jury. And if the jury had confined its consideration of the conduct of the reasonably prudent man to this one consideration, they would have failed in their duty which was to have before them the entire situation — all the facts in evidence bearing upon this point — and then say what the reasonably prudent man would have done in the light of these circumstances.

The court several times charged the jury that the defendant would not be liable if the plaintiff's injuries were the result of inevitable accident. No real attempt was made in the case to disprove the defendant's negligence; the only question open upon the evidence offered was that of the contributory negligence of the plaintiff. Under these circumstances inevitable accident had nothing to do with the case, and we fear the repeated charge upon this subject may have led the jury to think otherwise. Whether, if this error stood alone, we should regard it as so harmful as to require a new trial, we need not determine in view of other conclusions reached by us.

Another part of the charge, assigned as plaintiff's tenth error, is this: "And on the other hand, if you find that this accident occurred as the defendant claims it occurred, because this plaintiff was attempting to ride upon the bumper, and thereby his injuries were occasioned, there can be no doubt that he failed to exercise due care, that he contributed to his accident of his own negligence, and therefore he cannot recover." We have already said that in this case the issue of the plaintiff's due care should not be limited to one feature of the case, but must be decided upon a consideration of all the facts bearing upon it; and in such a case as this, is for the jury.

The charge was erroneous for another reason. If the jury found the plaintiff stood upon the bumper at the time he was injured, his standing upon the bumper was a condition, not a cause, of his injuries. The release of the air-brake and the movement of the car back, brought the cars together and injured the plaintiff. His being on the bumper did not cause the car to move or have any relation to it. It may have been a dangerous place and negligent for him to place himself there, and if he had fallen off when the car moved forward to its destination, the position of danger might well have had relation to his fall. But the collision of the front car with the rear was a danger that he had not been warned against and could not reasonably be expected to anticipate.

A similar situation arose in Smithwick v. Hall Upson Co., 59 Conn. 261, 270, 21 A. 924. Smithwick was helping to store ice in a brick building, and was warned not to stand upon a certain part of the platform on which he worked, because it was not safe. He, contrary to the warning, stood on this part of the platform, and was injured by a brick wall falling against him; as to which he had not been warned. We said: "The plaintiff had full knowledge of and was abundantly cautioned against certain particular sources of peril and danger, and he voluntarily neglected the warnings and took the risk of those perils and dangers. He was injured through the negligence of the defendant from an entirely different source of danger, of which he knew and could know nothing, and of whose existence it was the duty of the defendant to warn him. Under these circumstances the failure or neglect to heed the warning does not constitute contributory negligence. . . . To have that effect it must be an act or omission which contributes to the happening of the act or event which caused the injury." In Nugent v.New Haven St. Ry. Co., 73 Conn. 139, 141, 46 A. 875, a passenger stood upon the footboard of a trolley-car and leaned backward and came in contact with a pole near to the track while the car was in motion. We held: "That the plaintiff was on the footboard of the car must, on the finding as stated, be deemed not the cause of his injury, but only a condition. . . . Although he was on the footboard of the car, if he had not leaned back he would not have been injured. The leaning back was the proximate cause of his injury." Upon this principle we have held that the violation of a statute or ordinance, in actions of negligence, is immaterial "unless the act of violating the law is in itself a breach of duty to the party injured in respect to the injury suffered." Monroe v. Hartford St. Ry.Co., 76 Conn. 201, 206, 56 A. 498; Feehan v. Slater,89 Conn. 697, 701, 96 A. 159. Closely related cases applying the doctrine of proximate cause in a like manner are: Hoyt v. New York, N. H. H.R. Co.,78 Conn. 709, 713, 63 A. 393; Smith v. ConnecticutRy. Ltg. Co., 80 Conn. 268, 67 A. 888. In the first the passenger, thinking he had reached the station, got up, walked to the door, fell, and because there were no gates on the platform, was thrown under the car, and we held: "Whether, under some circumstances, the conduct of the plaintiff as found was careless or not, it had no necessary relation, as a proximate contributing cause, to injuries actually caused by the negligence of the defendant in leaving the platform in a condition unsafe, and which passengers had no reason to anticipate." In the latter case we held that driving across a street-railway track in front of an approaching car under such circumstances as to constitute negligence, did not bar the action if the railway company, by a new act of negligence, caused the injury. We said: "If, after an act of omission constituting negligence on the part of one injured at a railroad crossing, the railroad car or cars might have been so controlled, by the exercise of reasonable care and prudence on the part of those in charge of them, as to avoid the injury, then a failure to exercise such care and prudence would be an intervening cause, and so the plaintiff's negligence no longer a proximate cause, and therefore not a bar to his recovery."

There is error and a new trial is ordered.

In this opinion the other judges concurred.