The plaintiff's testimony affords no explanation of his negligent conduct in lying down beside the track, with his legs over the rail, except his own admission that he was more or less under the influence of the liquor he had taken. From a legal standpoint it is of no consequence whether he was drunk or sober. The important fact is that he went to sleep in that position of danger, and that his negligence in so doing is not explained away by any testimony. That being so, the trial court erred in failing to instruct the jury that the plaintiff was negligent in lying down on the track, and that so long as he remained there he continued to be negligent, in the passive sense that "he did not awake to his surroundings and do what he could to avoid the threatened consequences of a situation which he had already negligently brought about." Nehring v.Connecticut Co., 86 Conn. 109, 120, 84 A. 301, 524.
It follows that the plaintiff was not entitled to recover *Page 728 in this action, except by showing that his continuing passive negligence was not the proximate cause of his injury, and by showing that its real proximate cause was the supervening negligence of the defendant's servants in failing to use ordinary care to avoid injuring him after they had knowledge, actual or imputed, of his peril, and that he apparently could not or would not attempt to save himself.
The court also erred in charging the jury that they might find the defendant guilty of negligence if, under all the circumstances of the case, the speed of the car was excessive; for as already pointed out, the only negligence of which the plaintiff could take any advantage, was negligence supervening after his peril and his apparent unconsciousness of it were brought home to the defendant's servants. This erroneous submission of the issue of negligence in running the car at an excessive rate of speed, would not of itself require a new trial to be ordered, if the plaintiff's claim based on the doctrine of supervening negligence is supported by credible testimony and if it was properly presented to the jury. Aaronson v. New Haven, 94 Conn. 690, 697,110 A. 872, and cases cited.
The court did not err in finding that the plaintiff offered evidence to prove that the motorman did see the plaintiff at some time before he was hit. The substance of the conflicting testimony as to the visibility of the plaintiff has been indicated; and from it the plaintiff was entitled to make the claim that the motorman did see the plaintiff at some time before the injury, if he was keeping a close lookout, as he claimed.
Another group of assignments of error is based on the claim that the doctrine of supervening negligence is not applicable to the case presented by the evidence. The major contentions of the defendant on this question are founded on the proposition that the plaintiff *Page 729 was a trespasser because he was not walking but lying on the trolley track. It is said, in the first place, that the motorman owed no duty to a trespasser on the track except that of using ordinary care to avoid injuring him after his presence and peril were known; and that there is no evidence from which the jury could reasonably find that the motorman did see the plaintiff in time to avoid injuring him. Then it is said that, because no duty exists of keeping a lookout for trespassers, no recovery can be had on the theory that the motorman was negligent in failing to see the plaintiff in time to avoid injuring him.
In the view which we take of the case, we may assume, without deciding, that the plaintiff was a trespasser upon the trolley track within the meaning of the rules invoked by the defendant; and we may also assume, without deciding, that the evidence was not sufficient to enable the jury reasonably to find that the motorman did see the plaintiff in time to avoid injuring him. These assumptions leave, as the sole possible ground of recovery, the plaintiff's claim that the motorman ought in the exercise of reasonable care to have seen the plaintiff and to have realized that he was apparently unconscious of his danger, in time to have stopped the car before running over him. The jury must have found that such were the facts, for their verdict imports that they found all disputed issues of fact in favor of the plaintiff. Aaronson v. New Haven, 94 Conn. 690,110 A. 872. Therefore, the decisive question of law on this branch of the case is whether the motorman, under all the circumstances disclosed by the evidence, was under any legal obligation to keep a reasonably careful lookout for possible drunken men lying on the trolley track.
We think he was. The rule that the owner of property is not ordinarily bound to anticipate and provide for, or look out for, the presence of trespassers, is *Page 730 founded on the legal assumption that trespassers will not ordinarily be there. 1 Street, Foundations of Legal Liability, p. 155 note. But if the owner or his servants know that the presence of trespassers is to be expected, then the common obligation of exercising reasonable care gives rise to the correlative duty of taking such precautions against injuring trespassers as a reasonable foresight of harm ought to suggest. In this case the testimony was such that the jury could have found, and presumably did find, that the motorman had notice that drunken persons, in a more or less helpless condition, were likely to be found on the highway that night, and incidentally likely to be found on the trolley track. The notice was indefinite as to time, place and degree of helplessness, and the correlative duty was correspondingly indefinite. But it is certain that, independently of such notice, the motorman was bound to keep a lookout and to see any object on the track or in the path of his car, which could by the exercise of reasonable care have been seen. Before such notice he was bound to keep a lookout for drunken men walking on the track, and after such notice we think he was bound to keep a lookout for drunken men lying on the track.
The case of Dickson v. Chattanooga Railway LightCo., 150 C.C.A. 366, 237 F. 352, on which the defendant strongly relies, is very like this in other respects, but it is not in point, for in that case there was no notice that drunken persons might be expected to be found upon the track. So in Whitney v. New York, N. H. H.R. Co., 87 Conn. 623, 89 A. 269, there was no notice that trespassers were likely to be found upon the track.
There is, however, one error in the charge, bearing directly on the claim of supervening negligence, which requires us to order a new trial. In commenting upon the allegations of the complaint that the defendant was negligent in failing to provide competent and experienced *Page 731 operators for its car, the court said, in part: "The liability of the defendant, if any, must find its base in negligent conduct on the part of the defendant's servant or servants. You will understand, therefore, that no separate claim of recovery is based upon this allegation of incompetency and inexperience, and you will consider the evidence as to the competency and experience of the motorman and conductor only so far as it has any bearing upon the question whether or this occasion one or both of these servants of the defendant was negligent in the operation of the car at the time and place of the plaintiff's injury. Inasmuch as the competency and experience of defendant's servants may have some bearing on the question of whether they were actually negligent, you should consider whatever evidence there is of experience or inexperience, capacity or incapacity on their part." This instruction was erroneous and harmful. In our former opinion (94 Conn. p. 136, 108 A. 531) we said that the complaint laid no foundation for any claim of actionable negligence based on the incompetency or inexperience of the conductor or motorman; and it follows that no foundation was laid for the admission of evidence on that issue, or for its submission to the jury. Evidence of incompetency or inexperience is irrelevant because it does not prove or tend to prove the specific negligence alleged. In actions of this character, evidence of the competency or experience, or of the incompetency or inexperience, of either party or of his servants, is inadmissible as evidence of negligence, or the reverse. The connection is too remote. Morris v. East Haven, 41 Conn. 252;Bassett v. Shares, 63 Conn. 39, 46, 27 A. 421; Budd v.Meriden Electric R. Co., 69 Conn. 272, 286, 37 A. 683.
There is error and a new trial is ordered.
In this opinion the other judges concurred.