The plaintiff while riding on the tailboard of his employer's motor-truck, or while in the act of resuming his seat thereon which he had temporarily left to follow the truck on foot over a bridge, was injured by a head-on collision between the truck and a trolley-car of the defendant. By direction of the trial court the jury returned a verdict for the defendant, and the plaintiff appealed. Held that the existence of contributory negligence, which was the main defense, was not so clearly established by the evidence as to warrant the withdrawal of that issue from the jury's consideration, and that the trial court was therefore in error in directing a verdict for the defendant. A third person has a right to assume that those in control of vehicles which are rapidly approaching each other upon the highway in plain sight, will act as ordinarily prudent men should, and to regulate his own conduct in view of such assumption.
PRENTICE, C. J.
It is too clear to justify discussion, that the evidence bearing upon the issue as to the defendant's negligence was such as to entitle the plaintiff to its submission to the jury.
The question whether or not that which related to the issue as to the plaintiff's contributory negligence, is one presenting more substantial difficulty. Had the plaintiff been walking upon the trolley-tracks with nothing intervening between him and the trolley-car, which, as he says, he saw bearing down upon him when it was some one quarter of a mile or more distant, his conduct in not stepping aside, as he easily might, into a position of safety, would have been irreconcilable with the exercise of ordinary prudence. Such, however, was not the situation in which the plaintiff found himself. That situation, as the jury might have found it, was one in which, between him and the trolley-car, was an automobile truck immediately preceding him, and traveling in the darkening light following sunset along the trolley-tracks in the same direction as himself and with its lights lighted.
Under these conditions a determination of the reasonableness or unreasonableness of the plaintiff's conduct involved a consideration of what assumptions and deductions he was fairly entitled to make and act upon in respect to the imminence of danger to himself calling for independent action upon his part when, having become aware of the approach of the trolley-car, he, without further observation, resumed his place upon the rear of the truck or attempted to do so. Was he not, for instance, in view of the distance between the truck and the trolley-car, when their respective drivers ought to have become aware of each other's approach upon the same line of travel, reasonably entitled to assume that a collision was not to be anticipated? He was entitled to assume that the persons in control of the situation, to wit, the motorman and driver of the truck, would act as ordinarily prudent men should, and to regulate his conduct accordingly. Andrews v. New York N.E. R. Co., 60 Conn. 293, 299, 22 A. 566; Morrissey v. Bridgeport Traction Co., 68 Conn. 215, 218, 35 A. 1126; Hayden v. Fair Haven W. R. Co., 76 Conn. 355, 364, 56 A. 313; Riley v. Consolidated Ry. Co., 82 Conn. 105, 108, 72 A. 562. Was he not reasonably justified in assuming and acting upon the assumption that they would not only so act, but also that so acting, the truck would have an opportunity to get clear of the tracks before the car should attempt to pass it, and that, therefore, he was in no real danger while remaining with the truck? Was the situation, as it presented itself to him, so fraught with possibilities of danger that the dictates of ordinary prudence should have led him to fly from the tracks for safety? To what extent, if at all, does his failure to observe the movements of the approaching car after he first saw it, evince a lack of prudence on his part, and what bearing and significance ought to be given to that failure in passing judgment upon the plaintiff's conduct viewed in all its aspects? These are questions of large importance in a determination of whether or not the plaintiff was negligent, and their answers are not so clear that only ones unfavorable to the plaintiff could reasonably be given. We are of the opinion that they, and the ultimate question of the plaintiff's negligence or freedom from negligence, with which they are closely involved, should not have been withdrawn from the jury's consideration by the direction of a verdict for the defendant.
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