The principle is well settled, even where the case, unlike this one, is a jury case, that where the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error. Williams v. Perrotta, 95 Conn. 529, 533, 111 A. 843; Kryger v. Panaszy, 123 Conn. 353, 360, 195 A. 795; Shuchat v. Stratford, 125 Conn. 566, 572, 7 A.2d 387. There was no error in the rulings.
However his act in assuming a dangerous place to ride may be labeled as between him and his employer, the jury may find here that the conduct of defendant's driver constitutes an independent, intervening act of negligence and that the position of plaintiff on the train was merely a condition or circumstance of the accident rather than one of the proximate causes thereof. Powers v. Sternberg, 213 N.C. 41, 195 S.E. 88; Kryger v. Panaszy, 195 A. 795; Montambault v. Waterbury Milldale T. Co., 120 A. 145; Smithwick v. Hall Upson Co., 21 A. 924, 12 L.R.A. 279. Plaintiff was required to foresee those results which might naturally and proximately flow from his act in selecting a dangerous seat on the train.
Corey v. Phillips, 126 Conn. 246, 255, 10 A.2d 370. The first case in which we considered the application of the rule as stated in the Restatement was Hinch v. Elliott, 119 Conn. 207, 175 A. 684, and in that case and the subsequent case of Kryger v. Panaszy, 123 Conn. 353, 195 A. 795, where we also considered it, we treated the rule as pertaining to the question of proximate causation. See also Cuneo v. Connecticut Co., 124 Conn. 647, 651, 2 A.2d 220; Johnson v. Shattuck, 125 Conn. 60, 64, 3 A.2d 229.
Again we have used the words in relation to a situation where the plaintiff was not guilty of contributory negligence at all, as where he fell upon a street railway track by reason of incapacity resulting from a cerebral thrombosis. King v. Connecticut Co., 110 Conn. 615, 617, 149 A. 219. So, too, they have been used with reference to conduct which might have been negligent in regard to a certain hazard but was not negligent with reference to the particular risk which resulted in the injury. See Hinch v. Elliott, 119 Conn. 207, 209, 175 A. 684; Kryger v. Panaszy, 123 Conn. 353, 358, 195 A. 795; Hassett v. Palmer, 126 Conn. 468, 477, 12 A.2d 646. Within this class we have placed the cases of Smithwick v. Hall Upson Co., 59 Conn. 261, 269, 21 A. 924, and Montambault v. Waterbury Milldale Tramway Co., 98 Conn. 584, 589, 120 A. 145. Worden v. Anthony, 101 Conn. 579, 583, 126 A. 919. In such situations no question of proximate cause is really involved but where the principle applies the plaintiff has not been guilty of a kind of negligence which the law will regard in determining liability.
But going upon the bridge to make the measurements as they did would not constitute contributory negligence as regards the injuries they suffered. A conclusion that they were guilty of such negligence could be based only upon something done or not done by them which was a contributing cause to the bringing of the tape in contact with the feed wire and with themselves. That was the hazard upon the basis of which their negligence was to be determined. Restatement, 2 Torts, 468; Hinch v. Elliott, 119 Conn. 207, 210, 175 A. 684; Kryger v. Panaszy, 123 Conn. 353, 358, 195 A. 795. The finding discloses no conduct upon their part which contributed to bring about the injury due to that hazard and the conclusion of the trial court that they were not guilty of contributory negligence was correct. Where one voluntarily undertakes work when he knows or should know that risk of injury is naturally incident to it, appreciates that risk and realizes that unless he takes steps to protect himself he is liable to suffer such injury, he may be found to have assumed that risk. Freedman v. Hurwitz, 116 Conn. 283, 287, 164 A. 647; Dean v. Hershowitz, 119 Conn. 398, 412, 177 A. 262. But unless one has an opportunity to observe and realize the danger from an extraordinary risk which is not naturally to be anticipated from the nature of the undertaking upon which he is engaged, he does not assume that risk. Messinger v. New York, N. N. H.R. Co., 85 Conn. 467, 475, 83 A. 631; Baer v. Baird Machine Co., 84 Conn. 269, 273, 79 A. 673; Belevicze v. Platt Bros. Co., 84 Conn. 632, 6
e question was excluded and the plaintiff excepted. The examination of the witness in the absence of the jury shows that the basis of the trial court's ruling was the fact that, when persons were getting on the escalator the steps were moving away from the prongs, whereas when they were getting off it, the steps were moving toward the prongs, and that the two situations were therefore not substantially similar within the rule in Tager v. Sullivan, 113 Conn. 417, 155 A. 704. Under that rule testimony would be admissible that other women using the escalator fell under conditions substantially similar in the respects involved in determining whether the escalator was reasonably safe. Petrillo v. Kolbay, 116 Conn. 389, 395, 165 A. 346; Tuckel v. Hartford, 118 Conn. 334, 340, 172 A. 222. The determination whether the circumstances involved were substantially similar was a preliminary fact for the decision of the trial court which we could not find erroneous unless clearly and manifestly so. Kryger v. Panaszy, 123 Conn. 353, 360, 195 A. 795. The conclusion of the trial court is strengthened in this case by the claim of the plaintiff that she fell because the heel of her shoe was caught between the stationary prongs as she was about to step off the escalator.
The mere statement of this situation also disposes of the defendant's claim that the acts of the driver constituted merely a condition out of which the plaintiff's injuries arose and for the creation of which no legal liability rested on the defendant. Paraphrasing the rule stated in Kryger v. Panaszy, 123 Conn. 353, 358, 195 A. 795, the fact that the defendant was negligent is still a ground of recovery rather than a mere condition if the plaintiff's harm results from a hazard because of which the defendant's conduct was negligent. It was at least a question for the jury whether or not the conduct of the defendant was a condition merely. The question whether the original negligent act was the proximate cause of the injury is, as usual in close cases, more difficult.