of the legislative body are not relevant to our determination and must not be permitted to influence our decision." Beach v. Bradstreet, 85 Conn. 344, 82 Atl. 1032. "It is our duty to approach the question with great caution, examine it with infinite care, make every presumption and intendment in its favor and sustain the act, unless its invalidity is in our judgment beyond a reasonable doubt." | Beach v. Bradstreet, supra. [3] The precise question presented by this record is the validity of this public act in so far as it imposes duties upon the supporters and maintainers of such a bureau as the defendant had charge of to grant an inspection of its records and furnish certain information to the commissioner of the bureau of vending employment and in which persons | peals, and his reasons of appeal are confined seeking such employment duly authorize the to the question of the validity of the said registration of their names and qualifica- public act. tions; nor to companies, agencies, or associ- [1, 2] Courts in passing upon the validity ations conducted solely for the purpose of of a legislative act do not feel justified in preserving records and furnishing reports of declaring a law void unless there is a "clear financial standing and personal or business and unequivocal breach of the Constitution, credit; nor to the private records of em- not a doubtful and argumentative implicaployés kept by any person or corporation to tion." Cooper v. Telfair, 4 Dall. (Pa.) 14, 1 be used in accordance with the provisions of L. Ed. 721. "Nor must we be unmindful that chapter 153 of the public acts of 1909." within reasonable limits the legislative deThe accused was the secretary of the Man- |partment is the judge of what will constitute ufacturers' Association of Hartford county. a public use, and that the wisdom of its act It was admitted on the trial that "said as-is not our concern. Considerations of public sociation maintains a central bureau, con- policy which might and perhaps ought to veniently located, for two purposes: First, | make their appeal to the practical judgment for the purpose of supplying to members of said association suitable employés when and as needed; and, second, for the purpose of furnishing information to members relative to the health, character, reputation, habits, disposition, efficiency, and capacity as wage earners of persons applying to members for employment as such information may be determined, and reported to said association by the former employer or employers of such persons. In determining the history of applicants in this respect, it is customary to accept as final the report of the foreman under whom said persons may have worked; and the persons affected by the record thus obtained concerning them are without any knowledge or means of knowledge of the contents of such report, and do not know wheth-labor statistics as prescribed in the act. The er it is or may be used either in favor of or Legislature in this act declares by implicaagainst them when seeking employment else- tion that the public welfare requires that the where." It was admitted that said central voluntary maintenance of such a bureau bureau keeps a record of persons employed should be under such relations to the bureau by most of its members and of persons who of labor statistics as the statute provides. have left the employ of members, which rec-This court cannot find that the Legislature ord contains information as to employés ob- is wrong in this conclusion. What legislation tained as stated above. The defendant was is essential to the general welfare is a matter the agent in charge of said central bureau. peculiarly adapted to legislative decision. Acting under the provisions of section 1 Noble State Bank v. Haskell, 219 U. S. 113, of this act, the commissioner of the bureau | 575, 31 Sup. Ct. 299, 55 L. Ed. 341. The proof labor statistics applied to the defendant as secretary of such association in charge of the central bureau of the association for an inspection of the records of said association and for the information, which the act provides shall be promptly furnished to such commissioner, and the defendant refused to permit the inspection or to furnish the information. The defendant demurred to the information brought against him, on the ground that the public act in question was repugnant to the Constitution of the state of Connecticut, and also to that of the United States. The demurrer was overruled, and upon the trial the court was requested to charge the jury that the said public act was invalid. The court refused to do so, and the defendant was found guilty. He now ap-other Judges concurred. visions of this act relating to such duties and rights as pertain to the commissioner of the bureau of labor statistics are not so clearly and manifestly beyond the legitimate field of legislation as to be invalid. The purpose of this legislation in the particulars now under consideration reasonably may have been esteemed by the Legislature of such importance to the general welfare for statistical or other lawful purposes of such bureau of labor statistics, under the statute governing it, as to make the provisions relating to the commissioner of the bureau of labor statistics a valid exercise of legislative power. It is unnecessary at this time to consider the validity of the act in any other relation. There is no error. In this opinion the (86 Conn. 109) NEHRING v. CONNECTICUT CO. (Supreme Court of Errors of Connecticut. Oct. 1, 1912.) Dissenting opinion. For majority opinion, see 84 Atl. 301. see if a car was approaching. The circumstances showed that the deceased did not look for the car after he got within five feet of the track. The car was equipped with a fender, which it was the duty of the motorman to have had in position from two to four inches above the surface of the track. The fender The trial GEORGE W. WHEELER, J. court directed a verdict at the conclusion of at the time of the accident was a foot above plaintiff's evidence. The majority of the the track. The fender could have been dropcourt have, we think, overlooked or misinter-ped almost instantaneously to position by the preted some of the vital facts in the evidence, quite likely through their understanding that the plaintiff's case in reality rested upon the last clear chance doctrine, and that her claim, though pressed in argument and brief that the issue of contributory negligence was for the jury, was purely perfunctory. For this reason we state some of the facts which the jury had sufficient evidence before themed diagonally to the track, the car, which to have found. The accident occurred in the most prominent business section of Main street in the city of Ansonia. This street was paved with cobblestones. From the east curb to the west rail of the single trolley line running through the center of the street is 19 feet. Nehring. the deceased, was familiar with the street and car service, and he started at a point 5 feet from the east curb, as Hodgdon testified, to go to his wagon on the opposite side of the street to the south. He was then 14 feet from the track. At this time the defendant's single truck car, equipped with a hand brake, was approaching from the north, and was distant about 330 feet. The witnesses testifying as to the speed of the car placed it from 9 to 20 miles an hour. One Willehmy testified it was 15 or 20 miles an hour. The motorman kept no lookout, as McKeon testified. He rang no gong, and gave no warning, and did not reduce the speed, as all witnesses agree. The deceased walked at an ordinary gait from the east curb south to a point on the track 78 feet distant. Two witnesses say he walked in a diagonal direction across the street. One witness says he walked directly across to a point within two feet of the track, when he continued in a straight line within two feet of the track. When about at the street crossing running from the northerly line of Bank street, he stepped upon the track, was struck in the back by the front end of the car, thrown All of the under the wheels, and killed. time the deceased was walking he was facing the north, with his back toward the car. The day was clear; and, although there were teams on the street, the view of the deceased to the north and of the motorman to the south was unobstructed. The deceased could have seen the car, and the motorman the deceased. The deceased was slightly deaf, but could have heard the gong, had the motorman rung it. No direct evidence was offered whether the deceased at or before the time he started to cross the street looked up to motorman by pressure of the foot. Had the fender been dropped before the deceased was struck, he could not have been dragged under the wheels, and in all probability would not have been killed. At a speed of 15 miles an hour the car could have been stopped in about 30 feet. When the deceased was within 5 feet of the track, if it be found he walk was traveling 15 miles an hour, nearly 4 Two negligence and "last clear chance"-are involved. We discuss first the contributory negligence. questions-contributory First. The deceased had a right to cross the street when he did. His duty and that of the railroad company were reciprocal, each to look out for the presence of the other, the one to avoid being injured, the other to avoid inflicting injury. Laufer v. Bridgeport Traction Co., 68 Conn. 475, 37 Atl. 379, 37 L. R. A. 533. The motorman had the right to assume that Nehring would not put himself in a place of danger; and Nehring had the right to assume that the car would be operated in a reasonable manner, at a reasonable rate of speed, in the main business street of this busy city a few minutes before the noon hour, and that the car would be under control, and the motorman keep a reasonable outlook, and give travelers on or near the track timely warning of the car's ap proach There was no direct evidence that Nehring looked to the north, affirmative proof of which would be difficult in any event to obtain. No evidence and no inference is in the proof of the conduct of the deceased between the time he left the bake wagon and the time he is seen 8 or 10 feet south of the wagon and 5 feet from the curb. He was only 14 feet from the track. He was on his way across the street. It was reasonable for him to have looked at the beginning of his passage across, and the law presumes he did. Self-preservation would have suggested this. * * In Baltimore, etc., R. Co. v. Landrigan, 191 U. S. 461, 24 Sup. Ct. 137, 48 L. Ed. 262, the court relied upon this presumption to find that a traveler used his senses before going upon a railroad crossing. "We know of no more universal instinct than that of self-preservation. There are few presumptions based on human feelings or experience that have surer foundation." Id.; Sullivan v. Railroad Co., 175 Pa. 361, 365, 34 Atl. 798; Connerton v. Delaware, etc., Canal Co., 169 Pa. 339, 32 Atl. 416; 16 Cyc. 1057. This presumption is of a like character with that which enables the traveler to act on the presumption that a highway is reasonably safe for public travel. Lutton v. Vernon, 62 Conn. 11, 23 Atl. 1020, 27 Atl. 589. Of course, this presumption does not excuse the traveler from the use of reasonable care for his own safety, but that is to be measured in the light of this presumption. If, then, the deceased saw the car over 300 feet to the north when he began his passage across the street, starting at a point 14 feet from the track, was it negligent for him to assume that he had time to cross the track, or ought he to have waited until the car passed? Was it negligent for him not to have accurately judged the speed of the oncoming car and perhaps to have decided he had time to cross? Was it negligent for him to have assumed that in the heart of the business street of this populous city, at about the noon hour, the speed of the car would not be unreasonable? Was it negligent for him to assume that the motorman would have the car under control? Was it negligent for him to assume that the motorman would give him timely warning of the car's approach and reduce its speed? Was it negligent for him, at this time, in this place, under these circumstances, not to have stopped, looked, and listened before going so near the track as to be in danger? These were some of the considerations for the jury. We have reiterated that it cannot be said as matter of law a failure to do these things is negligence. O'Connor v. Connecticut Ry. & Ltg. Co., 82 Conn. 170, 72 Atl. 934. Whether the plaintiff's own negligence was a proximate cause of this accident depended on whether he exercised reasonable care under all of the many varying circumstances for the jury. Farrell v. Waterbury Traction Co., 60 Conn. 239, 21 Atl. 675, 22 Atl. 544. It is only when the application of this standard to the facts of a case makes it clear that no reasonable mind could reach any conclusion except that of contributory negligence that the decision becomes one of law and for the court. Is this case so plain that no reasonable conclusion could be reached other than that of the deceased's contributory negligence; that is, that his negligence was a proximate, efficient cause of the accident? If so, the direction of the verdict was right, otherwise, it was not. Steinert v. Whitcomb, 84 Conn. 262, 79 Atl. 675. We may estimate the average judgment by the average conduct. What is the conduct of the average person upon our crowded streets? Do not persons generally rely for their safety largely upon the fact that they travel upon the streets under the protection of the law which imposes upon the operators of instrumentalities of danger, such as the trolley car and the automobile, the duty of operation with knowledge of the liability of travelers being upon the street and the consequent necessity for careful outlook, reasonable speed, timely warning, and a car under control? The danger to a pedestrian crossing our streets has immeasurably increased with the use of these instrumentalities, and so has the fulfillment of his duty of using reasonable care. He should be held to his duty, but not in its practical application to a standard of care which is far beyond the conduct of the average man. Penalizing the injured to relieve the injuring traveler decreases the public safety, and in the end must add to the public burden the care of many of the stricken. We think the contributory negligence of the plaintiff's intestate should have been left to the jury. Second. Though Nehring was negligent in going near and upon the track without using his senses to discover the approaching car, his negligence was not a proximate cause of the accident, since the case is one for the application of the "last clear chance" doctrine. This is merely a name for certain forms of actionable negligence. These involve a situation presenting: (1) The negligence of the defendant. (2) The concurrent negligence of the plaintiff. (3) After such negligence of the plaintiff, some intervening negligence of the defendant which becomes the last act in the chain of causation. Our consideration of this doctrine will be aided by holding in mind some fundamental principles of the law of negligence. The negligence which will support a recovery for an injury must be its proximate cause. If one's own negligence be a proximate cause of his injury, he cannot recover for the consequences of another's negligence, for the law will not suffer him to recover for the misfortune due in part to his own fault. The negligence of plaintiff and defendant may be a legal sense, have ceased, because it has become a remote cause of the accident. It thus ceases to be a proximate cause of the accident. Just prior to the accident the defendant's car was being negligently operated. Assuming the plaintiff walked either diagonally toward and upon the track, or close to it without using his senses to learn of the approaching car and that there was no excuse for his failure, he was negligent. If the accident occurred while plaintiff and defendant were negligent, and the plaintiff's negligence was a proximate cause of the accident, and there was nothing more to the case, there could be no recovery. But if the defendant's motorman saw, or could by the exercise of reasonable care have seen, the plaintiff either approaching the track and about to place himself in danger, or walking so near the track as to be in danger, apparently heedless and unconscious of his peril, he owed to the deceased the duty of warning him and of observing such precautions as might avoid running into him. This was the case before the jury. We hold knowledge and the means of knowledge of one having a duty to know equivalent. Elliott v. New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298. This duty originated after the negligence of the motorman and of the deceased, and after his peril and his unconsciousness of it might have been discovered by the motorman. If its performance would have avoided the injury to the deceased, its breach was the proximate cause of the accident, and his negligence in placing himself in the place of peril a condition or the remote cause of it. Of course, if he had not gone upon the track, he would not have been injured. If he was negligent in going upon the track without using his senses, that was not the proximate cause of the accident, but the failure of the defendant to avoid the accident after it had the opportunity of avoidance and after it knew of the plaintiff's peril and his unconsciousness of it. In each case of discovered peril caused by one's negligence the question is, Did the defendant have the opportunity after such discovery and was it his duty to have avoided the accident? Whether the conduct of the motorman was gross negligence, or ordinary neg ligence, the breach of duty was the same in kind, though differing in degree. If one walks upon a railway track drunk, or in a reverie, or otherwise careless, or if one stands or lies on or so near the railway track as to be in danger and unconscious of it, or if one is in a position of peril through his own negligence from which he is unable to extricate himself, the persons knowing or having the means and the duty to know of his presence owes him the duty of avoiding injuring him. One who is negligently in a position of danger and unconscious of it is incapable of extricating himself from his peril. The few authorities which hold the antecedent negligence of the deceased in getting into peril is concurrent with the defendant's negligence so as to bar a recovery make meaningless the rule of duty compelling the defendant to use reasonable care to avoid the accident after discovery of the peril. A legal duty without a corresponding obligation is an anomaly. When we relieve the motorman of liability for failure to avoid an accident, he may operate his car at a negligent speed, without having it under control, without keeping an outlook, without giving warning of approach, and neither having nor using the ordinary instrumentalities of equipment for avoiding injury to travelers, and, so long as his conduct is not gross negligence, it carries with it no liability. The opinion of the court classifies in five groups the several kinds of cases which have been thought to be within the "last clear chance" doctrine. In group 1 the defendant, instead of doing his duty, does something which is a new act of negligence. In group 2 the peril is one from which the plaintiff cannot or cannot reasonably, extricate himself. Each group supports a recovery. In group 3, means of escape were open to the plaintiff down to the accident, but he remained unconscious of his peril. The opinion holds that, if the plaintiff remains passive after exposing himself to peril and does nothing to materially change that condition, there may be a recovery. But in group 4, assuming the same facts as in group 3, the court holds that if the plaintiff after exposing himself to peril, instead of permitting the fixed condition to remain unchanged continues as an active agent in producing the conditions under which the injury was received down to its occurrence, or until it was too late for the defendant to avoid the accident, there can be no recovery. In group 5, the defendant knows, or ought to know, that the injured one is careless and is about to expose himself to danger of which he is unconscious, and after such knowledge has the opportunity to avoid injury to him, and in such case the court holds there can be no recovery. We have attempted to show that the breach of duty of the defendant in each of these several groups is the same and was a new act of negligence of the defendant, viz., the failure of the defendant to avoid injuring the plaintiff after he knew of his peril when he was either unconscious of it or incapable of extricating himself from it, and that this breach was the proximate cause of the accident, while the plaintiff's prior negligence was the remote cause. The distinction between active and passive negli case in group 5, and holds the negligence of Nehring and of the motorman concurrent, and hence the negligence of Nehring was contributory. Our law on this subject was definite. It resolved actions of negligence based upon discovered peril to a determination of the proximate cause of the injury. It made no distinction between active and passive negligence, such as the opinion makes in groups three and four. In Elliott v. New York, N. H. & H. R. Co., 84 Conn. 444, 447, 80 Atl. 283, 284, we thus stated the rule: "If the defendant's servants, after they knew or ought to have known of Tetro's peril upon the crossing, neglected some duty which they owed him and the performance of which would have avoided his injury, such negligence would be the proximate cause of the injury, and his own negligence in driving upon the track would be only a remote, and not a proximate, cause thereof, and would not prevent the plaintiff's recovery." law as well as to the law of negligence gen- | found the opinion presumably places the erally prevailing in this country and in England. On analysis it does not seem logical. A. is crossing a trolley track when hailed by a friend. He stops upon the track to talk, and negligently fails to use his senses to discover an approaching car. The motorman could have seen A. in his place of peril, unconscious of his danger, and in time, with reasonable care, to have avoided inJuring him. Instead, he drives on his car and kills A. The opinion would hold A. negligent in being upon the track without using his senses to keep out of the way of the oncoming car, but that, as he remained passive and did nothing to change his situation of peril after the motorman had the opportunity to have avoided the accident, he may recover. But if A., instead of stopping on the track, had gone on his way across or upon the track and been struck, his negligence was active and continued to the accident, and was concurrent with that of the motorman. It must be conceded that the breach of the motorman's duty is the same in each case, to use reasonable care to avoid the accident. We see no reason why it should be available in the one case, and not in the other. In neither case has the plaintiff's negligence changed. It never became passive or nonexistent. It remained to the time of the accident. It ceased, in a legal sense, to be a proximate cause of the accident. A. was relieved of its consequences because the negligence of the motorman in failing to avoid the accident intervened and became its proximate cause. If this distinc-ery." tion holds, and A. be upon a trolley track intoxicated and asleep, his negligence is passive. If awake and walking, his negligence is active. That the general language of the opinion was intended to mean this is manifest by reference to Nichols v. Connecticut Co., 85 Conn. 710, 83 Atl. 1022, decided subsequent to this case. In that case the plaintiff left the sidewalk and walked a few feet directly upon a trolley track where she stood a moment, unconscious of her peril from an approaching car, which ran into her because of the failure of the motorman to avoid the accident after the peril of the plaintiff and her unconsciousness to her danger could have been known. The court held the case presented an example of passive negligence and within group 3. If the jury found that Nehring was walking within 2 feet of the track when the car was about 200 feet distant, and so continued to about the point of the accident, as Willehmy testified, the only condition taking the case out of the passive group that we observe is the fact that Nehring was in motion. If the jury found Nehring walked diagonally to the track, they might have found that the motorman could have known he was about to cross the track and was unconscious of the approaching car in time In Smith v. Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888, 889 (17 L. R. A. [N. S.] 707), we said: "If, after an act of omission constituting negligence on the part of one injured at a railroad crossing, the railroad car or cars might have been so controlled, by the exercise of reasonable care and prudence on the part of those in charge of them, as to avoid injury, then a failure to exercise such care and prudence would be an intervening cause, and so the plaintiff's negligence no longer a proximate cause, and therefore not a bar to his recov Carroll v. Connecticut Co., 82 Conn. 513, 74 Atl. 897; Elliott v. New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298; Isbell v. New York, N. H. & H. R. Co., 27 Conn. 393, 71 Am. Dec. 78. * In Southern R. Co. v. Bailey, 110 Va. 833, 845, 846, 67 S. E. 365, 369, 370 (27 L. R. A. [N. S.] 379), the court, in the course of an admirable statement and analysis of this doctrine, says: "The general rule adverted to is subject, however, to the qualification that when the negligence of the defendant is the proximate cause of the injury, and that of the plaintiff only the remote cause, the plaintiff may recover notwithstanding his negligence. From this principle arises the well-established exception to the general rule that if, after the defendant knew, or in the exercise of ordinary care ought to have known, of the negligence of the plaintiff, it could have avoided the accident, but failed to do so, the plaintiff can recover. In such case the subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negIf it be ligence of the plaintiff. the duty of a person upon the track of a railway to keep a constant lookout for ap |