Salemme v. Mulloy

*479 Curtis, J. The plaintiff moved that the verdict be set aside as against the evidence. An examination of the evidence discloses that the jury could reasonably have found the issues for the defendant. The reasons of appeal relate to the refusal of the court to charge as requested, and to claimed error in the charge given. Under the facts claimed to have been proved, the decedent might have been found to have stood in one of three relations to the defendant: As a passenger riding by invitation; as a trespasser on the car without the knowledge of the defendant; as a trespasser on the car with the defendant’s knowledge. The plaintiff in his fifth reason of appeal claims that the court erred in charging as follows: “Even though Tony got upon the defendant’s car as a trespasser— that is, wrongfully and without his permission expressed or implied, as the defendant claims — still if the defendant knew of his presence in a place of danger it was his duty to use ordinary care, that is, the care of an ordinarily prudent person, to avoid injuring him. He was not bound to keep a lookout for trespassers on his car, or to keep his car in a safe condition for the carrying of trespassers. But if he knew he was there and in a position of peril, he was bound to use reasonable care not to increase the hazard. If, on the other hand, the defendant did not know of Tony’s presence on the running-board, then he owed him no duty except to refrain from wilful injury or such gross and wanton recklessness and negligence as is the equivalent of wilful conduct. If you should find that the defendant knew that Tony and his brother got on the running-board of his car when he stopped, or discovered their presence there prior to the collision and permitted them to remain on, you would be justified in finding that they were there upon his implied permission, and thus he owed them the duty, *480 as I have stated to you, of being free from doing any negligent act or creating a new danger to which they were exposed while they were aboard; if he was guilty of some such negligent act your verdict should be in favor of the plaintiff.” This instruction was not open to objection by the plaintiff. It was more favorable to him than he could reasonably have asked. The court charges, in substance, that if the decedent was a trespasser on the car, without the defendant’s knowledge, the defendant owed him no duty except to refrain from wilful injury or such gross negligence as is equivalent to it. Under this charge the jury, if they found that the decedent was riding on the car as a trespasser, without the defendant’s knowledge, and also found that the defendant was grossly negligent in driving his car, and that such negligence was the proximate cause of the injury to the decedent, could have found the issues for the plaintiff. If the decedent was a trespasser on the car without the knowledge of the defendant, there was no duty that the defendant owed to him, and negligent driving however gross would not entitle such a trespasser to recover. We have established the duty that an owner owes to a trespasser as follows: “When the presence of a trespasser in a position of peril becomes known, the duty then arises of using ordinary care to avoid injuring him.” Kalmich v. White, 95 Conn. 568,571, 111 Atl. 845. The law is often stated less favorably to the trespasser, as follows: “No duty exists toward trespassers except to refrain from wantonly or wilfully injuring them.” It is obvious that such duty can only arise when the fact is known that some person is a trespasser. A duty to refrain from wantonly or wilfully injuring a trespasser, necessarily implies that the person on whom the duty rests knows of the presence of the trespasser in a place of possible danger. Before this knowledge *481 exists there can be no duty owing to the trespasser. Singleton v. Felton, 42 C. C. A. 57, 101 Fed. Rep. 526. The fifth reason of appeal is therefore without merit. The sixth reason of appeal, which seems to be the one mainly relied upon, is as follows: “The action of the trial court, in view of the foregoing instruction, in failing to also charge the jury as to the effect of any knowledge which the jury found he should have possessed under all the attending circumstances.” This claim is based on the assumption that, although the presence of the trespasser on the automobile was unknown, yet the driver of the car owed him, the duty of using due care to acquire knowledge of his presence. It is not a duty resting upon a driver of an automobile to use due care to anticipate and discover the presence of a trespasser on his car. Burdick on Torts (3d Ed.) p. 518, § 556, in stating the duty of a landowner to a trespasser, indicates also the duty of an owner to a trespasser upon personal property. ‘ ‘ The landowner is bound not to . . . subject him to harm by wilful, reckless or wanton conduct. He Is under no duty, however, to anticipate the presence of trespassers, or to regulate his business conduct with a view to safeguarding them. ... He is not required to use care to anticipate and discover the peril of such a person, but only to do so [use care] after the discovery of the danger. Until then, no legal duty is imposed, because no one by a wrongful act can impose a duty upon another.” This claim of error, therefore, cannot be sustained. The plaintiff’s claim that the court erred in its charge as to the burden of proof, is groundless; in the early part of the charge, the court stated that the plaintiff must prove that the decedent “was in the exercise of due care at the time of his injury”; later the court made it clear that this involved proving *482 that "his injuries were not caused by his own lack of due care,” and that a lack of due care was contributory negligence, which was negligence by the decedent which materially contributed to cause the injury. The court charged in effect that the negligence of the defendant must be the proximate and efficient cause of the injury to be a ground of recovery, and that the negligence of the decedent must be a proximate and efficient contributing cause of the injury to bar a recovery. The plaintiff claims that the court erred in defining the meaning of the terms negligence, contributory negligence, and condition as distinguished from cause. Taking the charge as a whole, the meaning of these terms was correctly and adequately explained to the jury. It must be borne in mind that in criticising the definition of terms in a charge, the charge must be considered as a whole, and that culling out of a charge one statement in relation to a term and subjecting it to a meticulous analysis does not establish error, if the treatment of the term in the whole charge both by definition and application is sufficient to adequately guide the jury. There was, therefore, no error in this particular. The plaintiff claims that the court erred in not making specific reference, as requested, to the evidence given of declarations by the decedent which were admitted ■under § 5735. It was within the discretion of the court whether or not to comment upon this evidence, and a failure to do so was not error. Gett v. Isaacson, 98 Conn. 539, 120 Atl. 156. The plaintiff claims that the court erred in its charge relating to the defendant’s claim that as he approached the truck where the injury occurred, his vision was affected (blinded) by the headlight of a car approaching from the west, and that he mistook the amount of room *483 that he should allow for passing the truck. The charge of the court was to the effect that such glare of the headlight and its effect on the defendant was a circumstance, if proven, to be considered in determining whether at the time in question his conduct was negligent; that if the jury found that he was not negligent but drove nearer the truck than he otherwise would, such misjudgment (if not negligence) would not subject him, to liability. There was clearly no error in this particular. The plaintiff claims that the court erred in its comments upon the admitted fact that' the decedent was riding upon the right-hand running-board of the car. We have frequently held that in certain definite situations constantly recurring in experience, a trial court may properly say that a certain definite standard of duty rests upon a person in such a situation, without infringing upon the province of the jury. For instance, that certain conduct in such a situation would constitute a want of due care. Demonde v. Targett, 97 Conn. 59, 63, 64, 115 Atl. 470; Murphy v. Derby Street Ry. Co., 73 Conn. 249, 253, 47 Atl. 120; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 34, 33 Atl. 533; Guilfoile v. Smith, 97 Conn. 271, 273, 116 Atl. 237. The court stated to the jury that “to ride on the running-board of a moving automobile is necessarily attended with greater danger than to ride inside the body of the car, and when one chooses to do so he must exercise a greater degree of care and diligence than when riding inside the car, as the greater the danger the greater the care that must be exercised.” In Guilfoile v. Smith, 97 Conn. 271, 273, 116 Atl. 237, we held that it was not error for the trial court to charge that “a passenger riding in an automobile in the street of a populous community with one leg protruding from one of the doors of the car in such a way as to make it *484 liable to come in contact with passing objects, is negligent in conduct.” In view of the holdings of this court above indicated, the action of the trial court complained of in the fourteenth, fifteenth, and sixteenth reasons of appeal was clearly within its discretion and free from error. The seventeenth, eighteenth, nineteenth and twentieth assignments of error are, in substance, that the charge taken as a whole was inadequate. These are not sufficient allegations of error for us to consider. Fagerholm v. Nielson, 93 Conn. 380, 387, 106 Atl. 333. The assignments of error not specifically considered are too obviously untenable to merit discussion. There is no error. In this opinion the other judges concurred.