Murphy v. Way

• Decision Date: 04 May 1928
• Citation: 141 A. 858,107 Conn. 633
• Court: Connecticut Supreme Court
• Parties: MURPHY v. WAY.

141 A. 858

107 Conn. 633

MURPHY v. WAY.

Supreme Court of Errors of Connecticut.

May 4, 1928

Appeal from Superior Court, Hartford County; Alfred C. Baldwin Judge.

Action by Mary E. Murphy against Sidney E. Way to recover damages for injuries to the plaintiff's person alleged to have been caused by negligence of the driver of defendant's automobile. Verdict and judgment for the defendant, and appeal by the plaintiff. Error, and new trial ordered.

Isaac Nassau and Francis P. Rohrmayer, both of Hartford, for appellant.

Allan E. Brosmith and Warren Maxwell, both of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HINMAN, J.

The collision of the defendant's automobile with the plaintiff occurred while the latter was crossing Farmington avenue, in West Hartford, at a point where it is intersected by Maplewood avenue and Lilley road. The plaintiff offered evidence to prove that, as she was so crossing, an automobile coming from the east and operated by a Mrs. Dunn stopped about an automobile length away from the plaintiff to allow her to continue on her way; that she observing that this automobile had so stopped, continued to cross, but just after she had passed in front of it she was struck by the defendant's car, which, for a distance of ten blocks east of the intersection, had been traveling two or three car lengths behind the Dunn car in the same direction, but when the latter slowed down and stopped, continued, without slackening speed or sounding any warning, passed to the right of the Dunn car, between it and the northerly curb, and, just after so passing, struck the plaintiff.

The defendant claimed to have proved that while his car was traveling westerly along Farmington avenue, traffic conditions being congested, there were two and sometimes three lines of vehicles moving westerly, simultaneously, and a like number of lines traveling easterly; that his car, during its entire course on that avenue, traveled in the northerly of these lines of west-bound traffic, near the curb, and the Dunn car in the line next southerly, traveling just north of the northerly of two lines of trolley tracks, located in that street; that at the time the Dunn car was stopping, as it approached the intersection, the defendant's car was abreast of it and continued, with abated speed, to pass it on its right in the line of traffic in which it was proceeding, and soon after it had so passed the accident occurred.

The plaintiff's complaint included in its specifications of negligence the act of the driver of defendant's car in passing to the right of the Dunn car, in violation of a rule of the road. This rule, established by section 1 of chapter 246 of the Public Acts of 1923 is that if any person, when driving or operating a vehicle on the highway, " shall overtake another, the person overtaking shall pass on the left side of the person overtaken, and the person overtaken shall, as soon as practicable, turn to the right so as to give half of the traveled road and a free passage on the left to the other. * * * Any person overtaking a vehicle shall not pass again to the right of the highway until the rear end of his vehicle has cleared the vehicle overtaken by ten feet."

The first assignment of error relates to that portion of the charge which dealt with this element of the case. The trial court read the above-quoted provision of the statute to the jury, and stated, further, that:

" The violation of this statute, if you should find it was violated, is negligence. If you find the statute was violated, the negligence attending such violation is actionable and may be the basis upon which the plaintiff may recover, provided you find such negligence the proximate cause of the plaintiff's injuries."

Such negligence, which, the court stated, " may be" the basis for recovery, is such basis if it is the proximate cause of injury, and should have been added, if the plaintiff is free from contributory negligence. Pietryeka v. Simolan, 98 Conn. 490, 495, 120 A. 310. The court then continued, as follows:

" You must remember that the rules of the road must be a reasonable rule, or reasonable rules; and a reasonable application of the rules of the road must be made. If you should find on Farmington avenue, it having a width of forty-nine feet at the point in question, that there were two lines of traffic traveling in opposite directions, at the time, and a car on the left line of one of the two lines of traffic traveling in the same direction should slow down or stop, and a car in the right line of the same lines of traffic as the one which had slowed down or stopped is in the rear, I cannot say to you, as a matter of law, that the passing by the car in the right line of the two lines of traffic upon the right of the halting or stopping car would be a violation of this statute. It is a circumstance for you to consider, gentlemen, with all of the other circumstances in the case, and for you to say, under such conditions as you find of traffic existing at the time in question, (whether) the passing * * * by the Way car of the Dunn car was negligence; and if you find

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