Morrissey v. Bridgeport Traction Co.

Andrews, G. J. If the court required of the defendant a higher degree of care in the management of its car than the law imposes, or if the court required of the plaintiff’s driver a lower degree of care in driving his wagon so as to avoid a collision with the defendant’s car, than the law requires, then, in either case there is an error of law which may be reviewed by this court. The driver heard the gong of the approaching car, turned and saw the car coming behind him at a rate of speed greater than his own, when he was one hundred and twenty-five feet away. His wagon was partly on the track of the defendant. It was his duty to drive off the track without loss of time. He did not do só, but continued along on the track where he knew he was in danger of being hit, and where the wagon [218] was Kit as soon as the car overtook him. This conduct was negligent. It was an omission to use ordinary care which contributed to .the injury complained of, and precludes any recovery for that injury, unless the conduct of the motorman on the ear obviated the effect of that negligence. It is true that the motorman did not lessen the speed of the car, until the car was within fifteen feet of the wagon. He might rightfully act on the presumption that the driver would drive off the track before the car reached him. Andrews v. N. Y. & N. E. R. R., 60 Conn. 293, 299; Glazebrook v. West End St. Ry., 160 Mass. 239; Everett v. Los Angeles Consol. Electric Ry., 43 Pac. Rep. 207. And he had no duty to slacken his speed until he was made aware that the driver was not going to turn out. The wagon could have been removed from all danger in a less distance than the fifteen feet, for there was nothing to prevent the driver from turning to the west and into a place of safety. As soon as the conduct of the driver indicated to the motorman that the wagon was not to turn out of the way, the motorman did everything in his power to prevent injury. He did not rush upon the wagon. At no time was he reckless or willful. He did nothing which relieves the plaintiff from the effect of the driver’s negligence. Birge v. Gardner, 19 Conn. 507; Rowan v. N. Y., N. H. & H. R. R., 59 id. 364; Cooley on Torts, 674. The ruling of the court on this part of the case seems to assume that it is the duty of the defendant to so manage its cars, that vehicles on its tracks if “in full view” of the motorman, shall not in any event be injured, however careless the driver of the vehicle may be. We do not understand that the law affords any such immunity to the drivers of vehicles, or imposes any such duty on motormen. Nolan v. N. Y., N. H. & H. R. R., 53 Conn. 461, 472. We think there was error in holding that the negligence of the driver did not contribute to the. injury. There is error and the judgment is reversed. In this opinion the other judges concurred.