The plaintiff, while operating his automobile after sundown in a southerly direction on his right-hand side of the highway with a clear vision of eighteen hundred feet, observed the defendant's trolley-car approaching in a northerly direction in the middle of the highway. From previous and accustomed use of the road, the plaintiff knew that at a certain point the defendant's rails deflected from the middle of the road across his path to the side upon which he was driving. He testified that he continued driving at the same speed and without change of direction until he collided with the trolley-car, which was then passing over the deflection. The jury returned a verdict for the plaintiff, which the trial court refused to set aside. Held that this was error, since the jury could not reasonably have found that the plaintiff exercised due care.
KEELER, J.
We have in the case before us a stretch of road eighteen hundred feet in length, on which there was an unobstructed line of vision for travelers thereon. There is nothing in the record to show that at or near the time of the collision this line of vision was in any way obstructed as regards the plaintiff's automobile or the defendant's car, nor that the presence of the other two automobiles on the road, as appears in the statement of facts, in any way prevented the plaintiff or the motorman from getting an accurate and indeed leisurely survey of the situation. The conduct of each of these persons is to be related to this fundamental fact. It was not dark, and each of the colliding vehicles displayed their lights.
To render the verdict which it did, the jury must have found the motorman negligent. There was evidence from which his negligence might reasonably have been found. He testified that he had his car under complete control, practically stopped it once, and then put on his power and went on again because he thought that plaintiff was going to pass him in the rear of his car, and had a chance so to do, and when he found he was in error he had arrived at a point where it was impossible to avoid a collision. With abundant opportunity to make a condition of safety sure, he went ahead on a close calculation of probabilities. This was not ordinary and reasonable care, especially if it be taken to be true, as he himself testified, that the plaintiff was going at a rate of twenty-five or thirty miles an hour.
The principal contention between the parties, however, is concerned with the claimed negligence of the plaintiff. In finding the plaintiff free from contributory negligence the jury came to a conclusion not warranted by the evidence, and which it could not reasonably have found. As we have just said there was from the beginning of the period involved in the transaction no circumstances putting either driver at a disadvantage. Plaintiff saw the trolley-car approaching quite a distance away, while it was still on the straight track in the middle of the road south of the deflection. He sized the situation and continued on his course at the same speed at which he was previously going. It is extremely probable that his view so satisfied him as to his proper procedure that he was in the same frame of mind as his companion, who did not give the matter "a second thought." He says he did not see the tracks on the deflection that day, but he knew just where they were, and he must have known, and in law must be held to have known, that if the vehicles met on the deflection there would be a collision. He had an opportunity then so to conform his movements to the situation that there would have been no possibility of collision. Instead of doing this, he proceeded on the right-hand side of the road without changing speed. The fact pressed by plaintiff's counsel and mentioned by the trial court in the memorandum of decision on the motion to set aside the verdict, that he did not actually see the point where the deflection commenced, is unavailable, since he knew just where the deflection was, and knew that on account of it the trolley-car would soon change its course, and such a change of course with the trolley-car still remaining on his left meant that it would cross his path. Due care on his part required him to do something more than make an estimate of probabilities, and then go ahead. Common prudence demanded some further observation, and conformity to the situation as it changed from moment to moment as the cars approached each other. The defendant's tracks were on the plaintiff's right, he had only to keep them there whether on the straight course or along the deflection to be safe until the trolley-car had passed and then to cross to his proper position on the highway.
No other reasonable deduction could have been made by the jury from the evidence in the case than that there was concurring negligence on the part of both the plaintiff and the motorman, from the time that either perceived the other. Each calculated the chances and went ahead; each thought that he could beat the other to the probable place of crossing, and backed his opinion by his conduct, instead of taking measures easily available which would have assured safety. The negligence of each was a proximate cause of the injury. Such conduct is not due care. McCarthy v. Consolidated Ry. Co., 79 Conn. 73, 76, 63 A. 725; Snow v. Coe Brass Mfg. Co., 80 Conn. 63, 69, 66 A. 881; Fay v. Hartford Springfield Street Ry. Co., 82 Conn. 471, 474, 74 A. 779; McKeon v. Connecticut Co., 83 Conn. 53, 54, 75 A. 139; Greenhill v. Connecticut Co., 92 Conn. 560, 562, 103 A. 646.