96 A. 163 | Conn. | 1915
The instructions of the court upon the subject of imputed negligence were erroneous. The plaintiff was a gratuitous passenger riding upon another's motorcycle upon the invitation of its owner and operator, and having no authority, control or right of control over the machine or its operator. The rule of *709
law consonant with reason and generally accepted, and accepted by this court, is that in such case the negligence of the driver will not, in case of injury to the passenger, be imputed to the latter. Bartram v. Sharon,
Defendant's counsel does not attempt to justify the court's instructions. Instead, he urges that the error was at most a harmless one, since the verdict of the jury under the circumstances of the case unmistakably indicates, as he says, that it found the defendant free from negligence. The plaintiff upon the trial claimed that the accident happened solely through the defendant's fault in not keeping to the right of the road as the law requires; the defendant that it occurred wholly by reason of Krupnikoff's negligent conduct in *710 the operation of his motorcycle. Each of these parties claimed to have been free from negligence, and to have observed the law of the road, and that the other was alone guilty of improper conduct. The defendant contends that the jury must therefore have found in favor of the one or the other of these contentions, and that, returning a verdict for the defendant, it must have found the situation as he claimed it to have been, — that is, one having no element of his negligence or misconduct in it. This argument is ingenious but hardly sound, as we cannot say that the jury might not have found the facts to have been variant from the claims of either party, and so have found that neither was free from fault contributing to the accident.
There is error, the judgment is reversed and a new trial ordered.
In this opinion the other judges concurred.