164 A. 647 | Conn. | 1933
The plaintiffs brought these actions to recover damages for injuries suffered in a collision between an automobile in which they were riding as *285
the guests of the defendant and another car, and from a denial of his motions to set the verdicts aside and from the judgments upon them the defendant has appealed. The jury might reasonably have found the following facts: The accident occurred about nine p. m. on September 1st, 1930, before it was very dark. The defendant had been on a trip from his home in Waterbury to Cape Cod, starting the morning of the day before the accident, driving about one hundred and sixty-five miles that day, getting no sleep that night and driving back the day of the accident, about two hundred and ninety-five miles. The plaintiffs joined him in Hartford, both being seated upon the rear seat of the car, with a daughter of the defendant. He was very tired when he left Hartford. Going up Southington Mountain the defendant's daughter complained of being tired. A conversation then took place between the defendant and his wife, as to the exact terms of which the witnesses differ, but it was to the effect that he was tired and was afraid he would go to sleep and that if he did she was to tickle him or pinch him. The automobile passed the top of the mountain and proceeded toward Waterbury at a rather fast speed. On a practically straight section of the highway it met another car traveling upon its own right side of the highway, with rather dim lights. When the defendant's car was opposite the other, it swerved suddenly to the left into the side of that other and the injuries to the plaintiffs resulted. The defendant could not tell how the accident came about, but upon the basis of these facts the jury might have reasonably inferred it was due to his falling asleep as he came opposite the other car. They could also reasonably have reached the conclusion that there was such a likelihood of the defendant falling asleep if he continued to drive the car, of which he was or should have *286
been aware, that he was guilty of reckless misconduct under the so-called "guest statute." General Statutes, § 1628; Potz v. Williams,
In each case the defendant filed a special plea, that the plaintiff knew the condition of the defendant and had assumed the risk of injury incident to traveling with him. He contends that the verdict should have been set aside because the jury could not reasonably reach any conclusion other than that the risk had been so assumed and also that the trial court erred in refusing to submit to the jury the issue raised by the special pleas. The principle of assumption of risk expressed in the maxim volenti non fit injuria has had its most frequent application in our jurisprudence in cases involving the common-law liability of a master for injury suffered by his servant in the course of his employment. The principle is, however, one of broad application. 1 Beven, Negligence (4th Ed.) p. 790; and for historical discussion see his article, 8 Jour. Soc. Comp. Leg. 185. We have held it applicable between a landlord and a tenant where the latter leases premises in an open, visible and dangerous structural condition. Valin v. Jewell,
The principle operates, however, in a rather strictly limited field. Because the essence of the doctrine is the assumption of the risk, the injured person must or ought reasonably to have perceived that it existed, and because it is the risk which is assumed the injured person must have appreciated it, or the situation must be such that he ought reasonably to have appreciated it and realized that unless he took steps to protect himself he would be liable to injury. Baer v. BairdMachine Co.,
One is entitled to assume that another will exercise proper care until he perceives or ought reasonably to perceive that that other is not doing so, and he does not assume the risk that another will by some sudden negligent act or omission subject him to danger. Stout
v. Lewis,
It remains to apply these principles to the case before us. The plaintiffs are a young girl about fifteen *289 years old at the time of the accident and a woman then about sixty. They were riding as guests of the defendant in the rear seat of his automobile. It is true that the jury could reasonably have found that each knew that the defendant was tired and sleepy and that he realized he might fall asleep while driving the car, yet thereafter, without remonstrance or effort to guard themselves from danger, they continued to ride in it for a few minutes, just how long the record does not disclose. As far as the denial of the motion to set the verdict aside is concerned, it must be remembered that the defense of assumption of risk is an affirmative one, with the burden of proof upon the defendant, and we cannot say that the jury were bound to find as matter of law that the plaintiffs appreciated the risk of the defendant falling asleep. But beyond that, considering the ages and sex of these plaintiffs, their position as guests of the defendant riding upon the rear seat of the car, the hour of the night and the place where they were, with the other surrounding circumstances, it does not appear that there was any course which it could reasonably be said they ought to have adopted to avoid such danger as there was in the situation. The jury could not reasonably have found that by continuing in the car they voluntarily chose to assume the risk within the true meaning of the doctrine. The trial court was correct in not submitting to the jury the issue raised by the special pleas.
There is no error.
In this opinion the other judges concurred.
