The portion of the charge first complained of was called out by the allegation in the complaint that the plaintiff's injuries were caused, among other things, by the defendant's negligence in failing to provide competent and experienced operatives for its car.
This was not a good allegation of actionable negligence. Had its charge been well founded, the defendant would not for that cause alone have rendered itself liable to the plaintiff. Whether those concerned in the operation of the car were competent or incompetent, experienced or inexperienced, the defendant would not be liable in this action in either event, in the absence of some negligent act or omission on their part. If there was no such act or omission, there would be no liability on the part of the defendant, however inexperienced, incompetent and unfit for their tasks the defendant's employees may have been. If there was such act or omission contributing to the plaintiff's injuries, the defendant would be liable however experienced and ideally competent the negligent actor servant was. The liability of the defendant, if any, must find its basis in negligent conduct on the part of its servant or servants. It cannot rest upon their want of qualification for their task alone. Monroe v. HartfordStreet Ry. Co., 76 Conn. 201, 209, 56 A. 498.
The instruction given, considered in the abstract, is perhaps not open to criticism, and if rightly understood and applied would not be objectionable. As furnishing the rule for the guidance of a jury under concrete conditions like those presented by the case at bar, it is, however, open to the objections, of practical importance, that it was calculated to give the jury the impression that actionable negligence on the part of the defendant might to predicated upon its employment of incompetent and inexperienced servants, that it tended *Page 137 to divert the attention of the jury from the real issue, that is to say, whether or not the defendant's employees were guilty of negligent conduct in the operation of its car, to one in itself immaterial, and impliedly, at least, invited them to find a ground of recovery in that which in and of itself would not create liability, and that it submitted to their consideration as constituting an issue matter which the evidence did not raise to the dignity of one.
With respect to the latter matter, it is to be remembered that the only evidence upon which a finding of the motorman's and conductor's inexperience and incapacity could be predicated, was that they were spare hands who had been in the defendant's employ only a month and been on the South Windsor run only four or five days. For aught that appears they may have had long experience elsewhere and been fit and competent in a high degree. Manifestly the jury could not reasonably have found that they were either inexperienced or incapable upon such proof alone. An instruction which left the door even slightly ajar for the entrance of a finding of negligence on the defendant's part which did not arise out of the acts of its servants, was calculated to do the defendant harm. "It is the duty of the court to submit to the jury no issue foreign to the facts in evidence, or in respect to which no evidence has been offered." Fine v. Connecticut Co.,92 Conn. 626, 630, 103 A. 901.
The third and fourth of the criticized passages were used in connection with the court's instructions touching the so-called last clear-chance doctrine, invoked by the plaintiff to avoid the effect of his own negligence in placing himself in the dangerous position in which he was when injured. Knowledge, actual or imputed, on the part of the defendant or its agents of the plaintiff's exposure where he lay, was a vitally important factor *Page 138 in the application of the principles under consideration. Given that, it would be difficult indeed for the defendant to escape liability. In the first of the two passages the court plainly implies that such knowledge might be imputed to the defendant from the mere lapse of time during which the plaintiff had lain where he was when injured. When it is remembered that the spot where he wittingly or unwittingly sought a resting-place was one quite away from the traveled roadway and in the unlighted country, that his body was more or less concealed by the growing grass in which he lay, that the time was near midnight, that he had been there not more than one half to three quarters of an hour, that no car had passed meanwhile, that no servant or agent of the defendant had had occasion during that time to be in that vicinity, and that, as far as appears, no person knew of his whereabouts after he started to walk home, — it is clear that conditions justifying the imputation to the defendant of knowledge of the plaintiff's presence in the grass by the side of its tracks were absolutely wanting. Clearly the defendant could not upon the evidence reasonably be charged with knowledge that the plaintiff lay where he did, except as such knowledge was or ought to have been gained by the motorman as his car approached the scene of the accident.
Passing now to the second (4) of the two passages, which immediately followed the first, we find the court saying to the jury that although the plaintiff, in remaining where he was, was guilty of continuing negligence, yet if his position was one which was or ought to have been obvious to the motorman, they must find that the latter's negligence, assuming that he was negligent, was the proximate cause of the plaintiff's injury, without reference to any conduct of the latter; and that, in that event, the plaintiff must have a verdict. This instruction predicated liability upon the acquisition *Page 139 by the motorman of knowledge, either actual or implied, of the plaintiff's exposed position, and ignored another condition of equal importance, to wit, that the motorman subsequently had the opportunity, by the exercise of reasonable care, to save the plaintiff from harm. Fine v. Connecticut Co., 92 Conn. 626,631, 103 A. 901. Under the charge the defendant would, in the application of the last clear-chance doctrine, be liable, notwithstanding the plaintiff's contributory negligence, if its motorman failed to stop his car and thus save the plaintiff from harm, although the plaintiff was hit the very instant after the motorman became, or ought to have become, aware of the plaintiff's danger.
As there must be a new trial, it is unnecessary to inquire whether or not the defendant's third and fifth assignments of error are well made.
There is error and a new trial is ordered.
In this opinion the other judges concurred.