175 A. 684 | Conn. | 1934
As far as the decisive issue upon this appeal is concerned, the facts were little in dispute. The jury could reasonably have found them as follows: *208 The plaintiff, with her husband, his brother and another woman went from the brother's cottage, in an automobile owned by him, about ten miles to a beach to bathe. The car was a Chevrolet roadster, with a rumble seat. On the trip to the beach the women occupied the rumble seat. On the way back they sat upon the front of the car, one on each side. The plaintiff's evidence was to the effect that they sat between the fenders of the car and the hood, and that she had her feet on the front bumper, holding to a rod which connected the headlights. The trial court states in its memorandum of decision granting the motion to set the verdict aside, that the court and jury examined the car and that it was so constructed that the women could not have sat between the fenders and the hood, but must have sat upon the top of the fenders. Their purpose in taking such a position was to dry their hair. A portion of the route from the beach to the cottage was along the Boston Post Road, a much traveled highway. The car went along this road, until just before the accident, at a speed of thirty-five to forty miles an hour. As it approached an intersecting road, the defendant's car, coming in the opposite direction, turned without signal to enter this road, thus crossing the path of the car on which the plaintiff was riding. The driver of the latter car applied his brakes and turned to the left, but the right front wheel of his car collided with the left rear wheel of that of the defendant. Neither car was overturned and the two men, sitting in the front seat of the roadster, were not thrown out and suffered no serious injury. The women were thrown off the car and both hurt. The trial court set aside the verdict rendered for the plaintiff upon the ground that she was guilty of contributory negligence as matter of law. *209
The trial court was right in holding that the plaintiff was negligent as matter of law. Even if upon this record we cannot accept as conclusive the statement in the memorandum of decision of the trial court as to the position of the plaintiff, but must proceed upon the assumption that the jury might have accepted the testimony she offered, it still remains true that her position upon the car was one of great danger. This is illustrated by the fact that the men sitting in the car were not thrown out or injured when the collision occurred, while both women were thrown to the ground. To ride perched upon the front of an automobile as the plaintiff did, over a much traveled road, subject to all the vicissitudes of traffic conditions, at a speed of thirty-five to forty miles an hour, was conduct so inherently dangerous as to justify the application of the rule stated in Guilfoile v. Smith,
The question remains, did that negligence so contribute to the accident as to defeat the right of the plaintiff to recover. In Montambault v. Waterbury Milldale Tramway Co.,
The Comment (b) under this section is illuminative: "The rule stated in this section is applicable when the plaintiff's conduct is negligent only because of its tendency to expose him to some particular type or types of hazards. There are many acts and omissions which are negligent because of their generally dangerous character and not because of their tendency to create any particular hazard or hazards. The rule stated in this section does not apply when the plaintiff's negligence is of this latter kind." The distinction so made commends itself to us as sound and it applies to the case before us. The position occupied by the plaintiff was dangerous not merely from the standpoint of negligence in the operation of other cars upon the highway, but from the likelihood that due to traffic conditions the car on which she was riding might have been forced to stop suddenly or swerve quickly, *211
and was also dangerous because of the likelihood of serious injury should either of these events occur, or a collision of any kind, or in any one of a great number of contingencies. The cases of Guilfoile v. Smith,
In view of what we have said, there is no occasion to consider the bill of exceptions filed by the defendant.
There is no error.
In this opinion the other judges concurred.