Nehring v. Connecticut Co.

It is clear and unquestioned that there was evidence, justifying its submission to the jury, tending to establish the defendant's negligence in the premises directly contributing to produce the fatal injury which the plaintiff's intestate suffered. The verdict for the defendant was directed upon the ground that the plaintiff had failed to present evidence, sufficient to go to the jury, tending to establish the intestate's freedom from contributory negligence. Plaintiff's counsel in his brief formally takes issue with this conclusion of the court, asserting that the evidence was such as entitled the plaintiff to go to the jury upon the question of the intestate's negligence. It is apparent, however, that little reliance is placed upon this particular claim, and that the contention that the court erred must fail unless the appeal which is made to the so-called doctrine of "the last clear chance," otherwise known as supervening or intervening negligence, is well made. This appeal is urged with vigor, so that the plaintiff's main contention, which alone calls for serious consideration, is that, notwithstanding the intestate's failure to use ordinary care, the defendant is liable through the operation of the doctrine referred to, which, it is said, the court disregarded.

The appeal which is thus made is one which has become quite common of late, and it is repeated in several other cases pending for decision. It is apparent from the variety of circumstances under which these claims are made, and the positions which are assumed in support of them, that there exists in many quarters a by no means clear understanding of the doctrine thus invoked. This is by no means strange in view of the lack of consistency and intelligent statement which characterizes the numerous cases which have dealt with the subject, and the confused condition in which many of them have left it. It is hard to find a branch of the law which has received more unsatisfactory and inadequate treatment at the hands of the courts than has this, or one which is more in need of intelligent and consistent determination. The cases involving in some way the matter are numerous, and one must be hard to suit who cannot find in some of them implied or express support for his preconceived view. The most difficult thing to find is a clear expression of fundamental principles, and logical and consistent statements of their application to varying conditions. The late Seymour D. Thompson, in his work on Negligence (Vol. I, § 231 et seq.), calls attention to this feature of the situation, and makes some forcible observations concerning the positions which have been taken by some courts.

It is fortunate for us, however, that this court early asserted, and has since held true to, one general position. We are thus spared the embarrassment, under which text-writers and not a few courts have labored, of dealing with a variety of dicta or decisions troublesome to harmonize with each other, if not with sound reason. It is further our good fortune that the position thus early assumed in this jurisdiction is one which stands the test of reason, comports with public policy best of all, and has come to claim the concurrence of the best authorities, courts and text-writers.

The notion appears to be more or less prevalent that this so-called doctrine is a discovery of recent years, that it embodies a new legal principle, and that this principle is one which invades the domain formerly assigned to contributory negligence, and sets limitations upon the operation of this latter doctrine so long and so deeply imbedded in English and American jurisprudence. This is by no means true as respects either the age or the character and scope of the principle which it embodies. The names by which it has come to be known are indeed of recent origin, and perhaps its present vogue and the misconception which prevails as to its true place in the law of negligence are due in part to its thus being given an independent status in the terminology of the law. In fact, the principle is no modern discovery. It runs back to the famous "Donkey Case" of Davies v. Mann, 10 Mees. W. 546, decided in 1842. It was distinctly recognized by this court in 1858 in Isbell v. New York N. H.R. Co.,27 Conn. 393. It was then not only recognized, but its true place in the law was assigned to it. It was shown to be no independent principle operating by the side of, and possibly overstepping the bounds of, other principles, but merely a logical and inevitable corollary of the long accepted doctrine of actionable negligence as affected by contributory negligence. The definition of its place, which was made in the clear-cut language of JUDGE ELLSWORTH, inexorably forbade that it could by possibility run counter in its application to the contributory negligence rule. This fundamental principle we have steadily adhered to. Smith v. Connecticut Ry. Ltg. Co., 80 Conn. 268, 270, 67 A. 888; Elliott v.New York, N. H. H.R. Co., 83 Conn. 320, 322,76 A. 298, 84 Conn. 444, 447, 80 A. 283.

There are, indeed, cases which give countenance to a different view upon this latter subject. But their dicta, oftentimes, not to say generally, uttered without an apparent comprehension of their logical consequence, would create havoc with the law, and leave it guileless, or with two conflicting guides. A sober second thought is, however, fast correcting this mistake, so that there has already come to be a general concurrence of the well-considered authorities in the view which has been taken in this jurisdiction.

The contributory negligence rule has no practical application save in cases where the defendant has been guilty of actionable negligence. It proceeds upon the theory that whenever a person injured has contributed essentially to his injury by his own negligent conduct, the law will not give him redress, even against another who may have been directly instrumental in producing the result. To furnish a basis for its application there must have been a concurrence of negligent conduct. This negligent conduct, furthermore, must have been of such a character and so related to the result as to entitle it to be considered an efficient or proximate cause of it. If there is a failure to use due care on the part of either party at such a time, in such a way or in such a relation to the result that it cannot fairly be regarded as an efficient or proximate cause, the law will take no note of it. Causa proxima, non remota,spectatur.

It thus logically follows that, although a plaintiff may have failed to exercise reasonable care in creating a condition, or in some other way, which cannot be fairly said to have been the proximate cause of the injuries of which he complains, the contributory negligence rule cannot be invoked against him. The question with respect to negligent conduct on the part of a person injured through the negligence of another, as affecting the former's right to recover, thus becomes resolved in every case into one as to whether or not that conduct of his was a proximate cause of the injury. If it was, then the contributory negligence rule is applicable, and the plaintiff will by its operation be barred from recovery. If it was not, that rule has no pertinence to the situation, since there was no concurrence of negligence, without which there can be no contributory negligence in the legal sense. It is conduct of the latter kind — that is, conduct careless in itself, but not connected with the injury as a proximate cause of it — to which the so-called doctrine of "the last clear chance" relates, and that doctrine embraces within its purview such conduct only.

This being so, it may well be questioned whether the doctrine deserves a classification and a name as of an independent principle. But if, for convenience sake or other reason, it is to be dignified in that way, it is apparent that there is no manner of inconsistency between it and the contributory-negligence rule, and that the domain of the latter rule is in no way invaded or narrowed by a full recognition of it. It follows that the decisive question in each case, where a plaintiff injured is found to have been at fault in the premises from his failure to exercise the required degree of care, resolves itself into one as to whether that fault was or was not a proximate cause of the injury, and that the answer to that question will infallibly determine whether or not it will bar a recovery.

These principles and this ultimate conclusion have become firmly established in the law of this State by the course of the decisions already referred to and others.Knowles v. Crampton, 55 Conn. 336, 345, 11 A. 593;Smithwick v. Hall Upson Co., 59 Conn. 261, 269,21 A. 924. They have also had the approval of numerous cases elsewhere, of which the following are typical:Button v. Hudson River R. Co., 18 N.Y. 248; Murphy v.Deane, 101 Mass. 455; Richmond v. Sacramento ValleyR. Co., 18 Cal. 351; Nashua Iron Steel Co. v. Worcester N. R. Co., 62 N. H. 159. See 16 Va. Law Reg. 162. A note, found in 55 L.R.A. 419, contains an exhaustive review of the many cases, and strongly supports this position. Thompson, in his work on Negligence (Vol. I, § 230), forcibly comments that any doctrine which brings the contributory negligence and last clear chance rules into conflict "introduces a principle of manifest injustice, and throws the whole subject into confusion."

Thus far we have had the way marked out for us by the clearly defined doctrine of former opinions. But the proposition just stated, which is thus supported, while sufficient for the determination of many cases and furnishing a helpful guide in most others, does not resolve all the difficulties which may be encountered. It leaves the question open as to when negligent conduct in a person injured in his person or property is to be regarded as a proximate cause of the injury. How close must be the causal connection between the negligence and the injury? It is at this point that any real uncertainty or trouble arises under the doctrine of this jurisdiction.

We are indeed furnished with general definitions of "proximate cause," as in Smith v. Connecticut Ry. Ltg. Co., 80 Conn. 268, 270, 67 A. 888, where the following language is used: "That only is a proximate cause of an event, juridically considered, which, in a natural sequence, unbroken by any new and intervening cause, produces that event, and without which that event would not have occurred. It must by an efficient act of causation separated from its effect by no other act of causation." But admirable as this definition is as an abstract statement, it leaves the door of uncertainly open when an attempt is made to make application of it to certain concrete situations.

The defendant in another pending case, involving the principle under discussion, asserts that the last clear chance doctrine is one which can have no application except to cases where the plaintiff's negligence had ceased in time for the defendant to have saved him by the exercise of due care. A considerable number of authorities are cited in support of that proposition, which is strongly advocated in a note found in 7 L.R.A. (N.S.) 132, in which the cases thus cited and others are reviewed.

We have no occasion to quarrel with these cases or their conclusion, since upon examination the proposition asserted in them does not essentially change the nature of the ultimate decisive inquiry which is required to be made under our statement of the governing rule. The negligence referred to in the claimed rule is, of course, that which the law so denominates, to wit, want of due care which is a proximate cause of harm. The proposition is not dealing with a lack of due care which the law ignores. When it speaks of the negligence ceasing, negligence in the legal sense is meant. It may in a given case cease in the sense that prudent conduct takes its place. It may for all legal purposes cease through the relegation of it, as events progress, to the domain of remote cause. In other words, it ceases when, and only when, the conditions of contributory negligence disappear. The claimed test thus solves no problems. It only brings one back, in doubtful cases, to the inquiry whether the plaintiff's conduct, lacking in due care, was of such a character, or so related to the injury, that it ought to be regarded as a proximate cause of it, as the real test which must be applied.

The impossibility of framing any general abstract statement which will suffice to resolve the difficulties which may be presented under varying conditions, or to anticipate all such conditions, is apparent. We shall undertake no such task. There are, however, certain sets of conditions, of not infrequent occurrence, concerning which general conclusions may be made safely and profitably.

There is, for instance, the occasional case where, after the plaintiff's peril, to which he has carelessly exposed himself or his property, becomes known to the defendant, the latter introduces into the situation a new and independent act of negligence without which there would have been no injury. Such was the case of Smith v. Connecticut Ry. Ltg. Co., 80 Conn. 268,270, 67 A. 888, and it was there held, in accordance with sound reason, that this new negligence was to be regarded as the sole proximate cause of the accident which ensued. The rule for that type of case is thus furnished.

Cases of another class occasionally arise, where it is disclosed that the plaintiff has by his lack of care placed himself in a position of danger from which he either cannot, or cannot reasonably, escape after the discovery of his danger. Here, again, there can be no hesitation in saying, that if the defendant, after his discovery that the plaintiff is in the situation described, fails to use reasonable care — and that is care proportioned to the danger — to save him from harm, and harm results from such failure, the defendant's want of care will be regarded as the sole proximate cause, and the plaintiff's a remote cause only.

The situation just stated is not infrequently changed, in that means of escape were open to the plaintiff by the exercise of reasonable care, but it was apparent to the defendant, in season to have avoided the doing of harm by the exercise of due care, that the plaintiff would not avail himself of them. Here it is assumed that the situation of exposure had been created and established by the plaintiff's action before the period of time began within which the defendant, acting reasonably, might have saved him, and that within that period the plaintiff did nothing to create or materially change that situation by active conduct which was not marked by reasonable care. Under the assumption he remains passive, in so far at least as negligent action is concerned, and can be regarded as careless only in this that he did not awake to his surroundings and do what he reasonably could to avoid the threatened consequences of a situation which he had already negligently brought about. In such cases the humane, and, to our mind, the better reason, all things considered, leads to the conclusion to which our former opinions, already cited, commit us, and which a large number of cases elsewhere approve, that the want of care on the part of the plaintiff will be regarded as a remote and not a proximate cause.

Another important variation is oftentimes introduced into the situation, in that the plaintiff continued as an active agent in producing the conditions under which his injury was received down to the time of its occurrence, or at least until it was too late for the defendant, with knowledge of his peril, to have saved him by the exercise of reasonable care under the circumstances. This variation imports into the situation an important factor. The plaintiff, during the period named, is not merely passively permitting an already fixed condition to remain unchanged. He is an actor upon the scene. He is, by acts of his volition, bringing into the situation which confronts the defendant changed conditions and, in the fullest sense, co-operating with the latter in bringing about the ultimate result. In such case his conduct must be regarded as a concurring efficient cause. It is, in the fullest sense, a proximate and not a remote one, making his negligence contributory.

It is said, however, that there are cases, and undoubtedly there are, where it is reasonably apparent to the one who inflicts the injury that the injured one is careless of his safety, and that, in continuance of his carelessness, he is about to place himself in a position of danger, which he subsequently does, and where the former thereafter, having a reasonable opportunity to save him from harm, fails to do so; and it is contended that in such cases the conduct of the injured person should be regarded as a remote cause only of the resulting harm. We are unable to discover any logical reason for such a conclusion, or any place at which a practical or certain line of division can be drawn between that careless conduct of a man, playing some part in an injury to him, which the law will regard as having that causal connection with the injury which makes it a proximate cause, and that careless conduct which will not be so regarded, if the contention under consideration is to be approved. The conduct of the man who inflicts the injury under such general conditions may indeed be such that it is open to the charge of wilfulness or wantonness. If so, the case is not one of negligence, and the defense of contributory negligence would not be available. Rowen v. New York,N. H. H.R. Co., 59 Conn. 364, 371, 21 A. 1073. If the conduct is not wilful or wanton, it is negligent only. Thus treated, it forms one factor of negligence in the situation. The plaintiff's want of care is another factor, and it certainly has something substantial to do in bringing about the result reached. Upon what theory or foundation in reason it can be said that, under the circumstances assumed, it is not an efficient cause of that result co-operating concurrently with the other cause to be found in the other party's negligence, we are unable to discover. The causal connection is plain to be seen, and the act of causation is that of a positive act of volition. The two actors upon the scene owe precisely the same duty to be reasonably careful. Dexter v. McCready, 54 Conn. 171, 174, 5 A. 855. Neither occupies in that regard a superior position, and the one who suffers can claim no precedence over his fellow actor or at the hands of the law. To say that no matter if one be negligent in going forward into danger, or in creating new conditions or complicating them, the law will protect him and cast upon the other party the responsibility for the result, is to ignore the fundamental principle of contributory negligence and bring the law upon that subject into hopeless confusion, and merit for it the condemnation which Thompson has so forcibly expressed. 1 Thompson on Negligence, §§ 230, 233. The well-considered cases which have directly dealt with this subject agree with us, we think, in our view that active continuing negligence of the kind assumed is to be regarded as contributory in the legal sense. Butler v. Rockland, T. C. Street Ry. Co.,99 Me. 149, 160, 58 A. 775; Murphy v. Deane,101 Mass. 455, 465; Dyerson v. Union Pacific R. Co., 74 Kan. 528,87 P. 680; Little v. Superior Rapid Transit Ry. Co.,88 Wis. 402, 409, 60 N.W. 705; Green v. Los AngelesTerminal Ry. Co., 143 Cal. 31, 47, 76 P. 719; Olson v.Northern Pacific Ry. Co., 84 Minn. 258, 87 N.W. 843.

We have thus far dealt with cases in which actual knowledge on the part of the defendant of the plaintiff's peril enters into the assumption of facts. Suppose, however, that such knowledge is not established, but facts are shown from which it is claimed that the defendant ought in the exercise of due care to have known of it. What shall be said of such a situation?

In so far as imputed or constructive knowledge may be embraced in the assumption, the simple answer is to be found in the legal principle that full and adequate means of knowledge, present to a person when he acts, are, under ordinary circumstances, treated as the equivalent of knowledge. Post v. Clark, 35 Conn. 339, 342.

But our assumption reaches outside of the domain of knowledge, either actual or constructive. It suggests, in the use of the phrase "ought in the exercise of due care to have known," frequently met with in the books, the existence of a duty to exercise due care to acquire knowledge, and the query is, whether the law recognizes the existence of such a duty to the extent of making it a foundation for responsibility for conduct akin to that which flows from conduct with actual or constructive knowledge.

We have frequently held that the character of one's conduct in respect to care is to be determined in view of what he should have known as well as of what he did in fact know. Snow v. Coe Brass Mfg. Co., 80 Conn. 63,66 A. 881. In these cases the question has been as to one's duty for his own self-protection. That duty, according to established principles, involves the making of reasonable use of one's senses under the penalty of forfeiture of all claim for redress in the event that harm results. Popke v. New York, N. H. H.R.Co., 81 Conn. 724, 71 A. 1098.

But how about a duty of acquiring knowledge, owed to others for their safety, which, not being performed, will furnish a basis of liability? In Elliott v. New York,N. H. H.R. Co., 83 Conn. 320, 76 A. 298, we recognized that such a duty might exist. That case involved the conduct of a locomotive engineer operating his engine at a grade-crossing, and we approved a charge which gave to the knowledge which the engineer, under the conditions, ought, in the use of due care, to have had, the same effect as actual knowledge. The duty imposed upon him was one to be watchful in order that needless harm might not come to persons who might be using the crossing, form the dangerous instrument of his calling. The duty was one toward others, which the circumstances and conditions must be regarded as fairly creating. For a like reason a similar duty rests upon other persons and under other conditions, in greater or lesser measure. Whether it exists, and the extent of it, depends upon the circumstances of each situation. A circumstance of chief significance, perhaps, is one which concerns the character of that about which the person is engaged in respect to its being calculated, under the conditions, to work injury to others. And so it is that a locomotive engineer, a motorman of a trolley-car running in a highway, or a chauffeur driving an automobile, is under a duty to be watchful for the protection of others which another man under other conditions would not owe to his fellows. Unreasonableness in one's conduct, as a foundation for responsibility to others, cannot justly be established upon the basis of knowledge not possessed. It can with propriety be predicated upon negligence in not having acquired more knowledge. Negligence in this respect, as in all others, implies the existence of a duty to make use of means of knowledge. This duty must be found in the circumstances, and caution must be exercised in order that it, with its consequences, be not raised where the circumstances do not fairly impose it, or be extended beyond the limits which the circumstances fairly justify.

An examination of the evidence in the present case, all of which was introduced by the plaintiff, discloses that she failed entirely to prove that her intestate was free from contributory negligence. On the contrary, it clearly shows that he did not exercise due care, and that his want of care was a proximate cause of his death. The witnesses are in entire accord in showing that, immediately prior to the moment when he was struck by the car, and down to that moment, he was walking in a diagonal course across the main street in Ansonia, and in a course which would take him across the trolley tracks laid therein; that his course was one which would, as he approached these tracks, bring him to them at a pronounced acute angle, so that his view of them in one direction would be practically obscured; that he, not having the benefit of a normal sense of hearing, did not look about him or take any of the ordinary precautions for his safety, but kept steadily on his way until he was hit in the rear, upon the right side, by the fender of the car which approached from that direction.

It thus appeared, and a jury could not have found otherwise reasonably, that the intestate down to the final moment of impact continued in his negligent course of action, and in a most effective way helped to create the dangerous situation in which he was injured. For aught that appears, he did not step into the zone of danger until the very instant that he was hit, and he took that step by his own voluntary act. Under the principles already laid down, his negligent conduct must be regarded as a proximate cause of the harm which befell him, and he as having been guilty of contributory negligence barring recovery in the action.

There is no error.

In this opinion THAYER and RORABACK, Js., concurred.