103 A. 901 | Conn. | 1918
Lead Opinion
This case was before us upon a former occasion when the plaintiff appealed from a judgment in the defendant's favor, for the reason that a defendant's verdict was directed by the court. Fine
v. Connecticut Co.,
The court incorporated into its charge the following instruction: "If you should find from the evidence in this case that the plaintiff was negligent in the manner in which he crossed or attempted to cross the tracks and did not use his senses when he ought to have done so, and did not keep a proper lookout for approaching cars, or you find that he was not aware of their approach; and you further find that notwithstanding his negligence, the motorman, after the plaintiff had so placed himself in the dangerous situation, could, by the exercise of ordinary prudence and reasonable care, have avoided hitting him and injuring him with his car, and did not do it, the defendant would be liable; as in that case the accident would be the result of the negligence of the motorman as an intervening cause, after the plaintiff was or ought to have been known by him to be in danger."
The defendant does not complain of this passage as containing an incorrect statement of the law. Its complaint is of the inappropriateness and misleading *629 character of such or any similar instruction, because of its plainly-implied recognition that there might reasonably be found from the evidence that a situation existed in respect to which the doctrine of supervening negligence was applicable, and might be invoked to the plaintiff's advantage. The burden of its grievance is that in its instruction the court went outside of the case and imported into it an issue which had no place in it, and thereby opened a door for the plaintiff's escape from the consequences of his own negligence which the evidence, in any reasonable view of it, did not permit to be open to him.
The finding is utterly barren of facts attempted to be proved by either party furnishing a reasonable basis for a conclusion that conditions existed enabling the plaintiff to invoke the aid of the doctrine of supervening negligence. It certainly could not be claimed that the defendant, subsequent to the plaintiff's exposure of himself to peril, introduced into the situation a new and independent act of negligence without which the plaintiff would not have been injured. Nehring
v. Connecticut Co.,
The case, as the parties presented it, was the ordinary one involving the ordinary issues of negligence, contributory negligence, and their concurrence, uncomplicated by unusual conditions existing in some cases which make it necessary to examine the situations there presented in the light of certain differentiating principles which go to make up the so-called doctrine of the last clear chance or supervening negligence. The plaintiff plainly so regarded it. He offered no evidence to prove that a situation calling for or permitting the application of that doctrine existed, he made — in so far as the record discloses — no claim to that effect, and presented no request to charge upon that subject. Apparently it was due to the voluntary action of the court that the issue of supervening negligence was imported into the case.
It is the duty of the court to submit to the jury no issue foreign to the facts in evidence, or in respect to which no evidence has been offered. Water Commissioners
v. Robbins,
In order that we may not be understood as approving of the portion of the charge recited as embodying a correct exposition of the law, we ought to add a few words *631
upon that subject. The court manifestly was undertaking to state the law applicable to a limited class of cases, to wit: those in which, after the injured party had come into a position of peril, there was neither the introduction into the situation of a new and independent act of negligence on the part of the injuring party without which the injury would not have been caused, nor the continuance by the party injured of active negligence contributing to produce the result which ensued. An examination of the language used inNehring v. Connecticut Co.,
In the instruction given certain of these conditions, *632 while perhaps not wholly ignored, were left to be inferred rather than clearly stated. Take, for instance, the important matter of the point of time when the defendant's duty would, in the application of the doctrine of the last clear chance, take on a different aspect from that which it had when the situation of peril was in the making, and his negligence assume a new and more intimate relation to the resulting injury than had his previous want of care. That time is determined by two factors, to wit, the creation and existence of a situation of peril into which the injured party has come, and the possession by the other party of knowledge, either actual or constructive, of certain things concerning the injured party's position in respect to that peril. The instruction given, in so far as it may be said to cover this ground, is so vague and general that the jury could hardly have derived an accurate understanding of the rule they were called upon to apply. Furthermore, the test of the defendant's liability appears to have been made dependent, in some measure at least, upon the actual result rather than upon the exercise, or failure to exercise, reasonable care to avoid that result.
There is error and a new trial is ordered.
In this opinion RORABACK, BEACH and SHUMWAY, JS., concurred.
Concurrence Opinion
I concur in the result, but prefer to place the decision upon the ground that the plaintiff did not, on the evidence, make out a case. *633