Dreher v. Smith. In Re Smith's Estate.

• Decision Date: 03 January 1946
• Citation: 45 A.2d 712,132 Conn. 472
• Court: Connecticut Supreme Court
• Parties: DREHER v. SMITH. In re SMITH'S ESTATE.

132 Conn. 472

45 A.2d 712

DREHER

v. SMITH.In re SMITH'S ESTATE.

Supreme Court of Errors of Connecticut.

Jan. 3, 1946.

Appeal from Superior Court, Hartford County; Mellitz, Judge.

Action by Josephine Dreher against Frederick J. Smith for personal injuries sustained in automobile collision, wherein defendant filed a cross-complaint. The original defendant died prior to the trial and Julie E. Smith, executrix of his estate, was substituted as party defendant. The issues were tried to the jury. From an adverse judgment, defendant appeals.

No error.

Robert L. Halloran, of Hartford (Thomas J. Hagarty, of Hartford, on the brief), for appellant (defendant).

Joseph E. Klau, of Hartford (William M. Pomerantz, of Hartford, on the brief), for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

Two automobiles collided at the intersection of Garden and Greenfield Streets in Hartford. In the resulting litigation the jury returned a verdict for the plaintiff upon her complaint and the defendant's cross complaint, and the defendant has appealed from the trial court's denial of a motion to set aside the verdict and from the judgment. The original defendant died prior to trial, and the executrix of his estate was substituted as the party defendant, but for convenience he will be referred to as the defendant. His negligence is not in dispute, and the principal question is whether, upon the whole evidence of the case, the plaintiff must be held to have been guilty of contributory negligence as a matter of law.

A summarized statement of facts which the jury reasonably could have found is as follows:

The plaintiff was driving her case closely behind a Ford dump truck with high sideboards which was proceeding southerly on Garden Street, near its westerly curb, at about fifteen miles an hour. The day was clear and the pavements were dry. Because of this slow speed her Ford coupe began to buck, she was afraid she would run into the truck, and at a point about two hundred feet north of where Greenfield Street comes into Garden Street from the west she drew from her position in back of the truck and came up on the left of it so that the front of her car was even with the rear wheels of the truck. She was familiar with the intersection which she was approaching and knew that Greenfield Street was a stop street. She said she depended on an assumption that if there was anything coming on Greenfield Street the truck driver would stop and she would have time to stop. She testified that ‘after a second or so I noticed that the truck drew away from me toward the right * * * and the next thing I knew this car came out from Greenfield Street. I kept going straight ahead, of course, and I thought the truck goes into Greenfield Street * * * I put my brakes on but I was too near * * * I only had about fifteen feet to avoid him * * *I jerked [the wheel] to the left * * * but he was too near me, so I hit his front.’ After she drew up alongside the truck she could not see whether there was any traffic coming from her right, and she did not see the defendant's car until it was about fifteen feet away....