Chodes v. Everett B. Clark Seed Co.

Per Curiam. Only one of several reasons of appeal is pursued by the appellant’s counsel in his brief. That one assigns as erroneous a sentence of the charge wherein the court, following its instructions concerning the law of the road in the matter of the right of way at highway intersections as prescribed by the statute in force at the time that the plaintiff received his injury (General Statutes, § 1540), said: “I am calling your attention to this rule, gentlemen, because it has been referred to, but in the opinion of the court it has nothing to do with the facts in this case, because the plaintiff was not the owner or was not operating that car, unless you find that he himself was negligent in some way.” In making this statement the court quite likely had in mind the principle it had previpusly given to the jury, that any negligence of Ganz’s was not to be imputed to the plaintiff, who was to be held responsible for his own negligence only, intended to make practical application of it, and failed for the moment to realize the full significance and possibly important bearing of his language. The case involved two issues: one as to the defendant’s negligence, and the other as to the plaintiff’s contributory negligence. As related to the latter issue, it is apparently true that the statutory rule of the *266 road referred to by the court possessed no importance in the case at bar, since the plaintiff, as far as appears, was not in a position to be in any respect responsible for its disobedience by Ganz, if disobedience there was. As bearing upon the first issue, however, the situation was altogether different. This issue was the primary one in the case. A verdict for the plaintiff could not be rendered unless it was found that the defendant’s servant had been negligent in his operation of its car. As between the two cars the defendant’s was the one approaching the intersection from the other’s right, and therefore the one entitled to the right of way if the two cars reached the intersection of the streets at the same or substantially the same time. It is evident, therefore, that the rule of the road, and its observance or nonobservance by Ganz, might, under a state of facts which the jury might have found to have existed, have been a matter of great importance in determining whether or not the defendant’s servant acted as an ordinarily prudent man might be expected to act under similar circumstances. He, in the operation of his car, was entitled to govern his conduct in some measure upon the assumption that other operators would conform their conduct to the law, and the negligent conduct of Ganz in not doing so, if that were the fact, would be deserving of consideration in determining whether or not the former’s conduct in the situation as it presented itself to him came up to the standard of ordinary prudence. The presence or absence of negligence in the conduct of the defendant’s servant was to be determined in this, as in all other cases, in view of all the surrounding circumstances which reasonably might or properly ought to have influenced his action. The passage in the charge complained of, withdrew from the jury consideration of certain of these circumstances entitled to consideration *267 and which might, have been of importance in measuring the conduct of the defendant’s servant by the accepted standard. There is error, the judgment is set aside and a new trial ordered.