Annes v. Connecticut Co.

• Decision Date: 12 December 1927
• Court: Connecticut Supreme Court
• Parties: ANNES v. CONNECTICUT CO.

139 A. 511

107 Conn. 126

ANNES v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

December 12, 1927

Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.

Action by Peter Annes, administrator, against the Connecticut Company, to recover damages for personal injuries resulting in the death of plaintiff's intestate, and alleged to have been caused by defendant's negligence, brought to the superior court in New Haven county and tried to the jury Nickerson, Judge. Verdict and judgment for defendant, and plaintiff appeals. Error, and a new trial ordered.

Michael V. Blansfield and Herman B. Engelman, both of Waterbury, for appellant.

Walter E. Monagan and Walter F. Torrance, both of Waterbury, for appellee.

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

HAINES, J.

The plaintiff's decedent, Nicholas Moni, received fatal injuries while crossing East Main street in the city of Waterbury shortly after 5 o'clock in the afternoon of January 18, 1925. There are two parallel lines of trolley tracks on this street, one for east and one for west bound trolley cars operated by the defendant, and it was the claim of the plaintiff that the deceased was struck by a west-bound car, because of the negligence of the defendant's motorman, and died within an hour, as the result of the impact. The plaintiff claimed and offered evidence to prove that before being struck, Moni, crossing Main street via the sidewalk, had stopped between the two trolley tracks and remained standing there until the car came to a stop within about five feet of him; that he then started across the west-bound tracks in a careful manner and in full view of the motorman, and the motorman was watching him as he thus crossed the roadway, which was icy and slippery; that as he had reached the north rail and was about clear of the tracks, the car started and struck him just as he cleared the north rail, and thus caused the injuries which he suffered; that just before the car struck Moni, the motorman had been sitting down with his hands on the control box, and in that position could see only the top of Moni's head as he glanced out of the window, and thought Moni had gotten across the path of the car; that the right front of the car struck him, and he " reeled around on the icy and slippery road with his hands to his side and fell" ; that the motorman gave no signal of his intention to start the car or pass Moni; that the rate of speed of the car under the existing conditions was unreasonable and dangerous; that the window in the front of the car was of a height greater than that of an average man, and, being in a sitting position, the motorman could not see Moni's actions as the car came within four or five feet of him; that if he had been standing he could have had a full view of the man and have seen his actions, as there was plenty of light at this point at the time; that it should have been apparent to the motorman that Moni was about to cross the tracks, and if he had been on his feet and using reasonable care in observation and in the operation of the car, he could have avoided striking Moni after the later had gone onto the track and was in a position of danger and either would or could not save himself; and that no act of Moni materially and essentially contributed to his injury and death.

The claims which the defendant offered evidence to prove were that after Moni had crossed, he stopped by the north rail of the east-bound and not the west-bound track, and so stopped in a position of safety, and that from this point he suddenly attempted to dash across in front of the car, which was on the west-bound track.

The complaint shows an attempt to state a cause of action for negligence, and then, with some recapitulation and further facts, a cause of action for supervening negligence. Though they are somewhat confused, the facts as pleaded could be construed so as to justify a verdict on the latter ground if the proof warranted, and the complaint can be fairly said to cover any want of care on the part of the motorman which might be proved under it, whether negligence or supervening negligence. Mezzi v. Taylor, 99 Conn. 1, 10, 11, 120 A. 871; Richard v. New York, N.H. & H. R. R. Co., 104 Conn. 229, 233-235, 132 A. 451.

The plaintiff by the request to charge, which appears in the finding, sought to invoke this doctrine of supervening negligence. Though of somewhat doubtful accuracy as a statement of the rule, the request was obviously understood by the court, as was intended by the plaintiff to be a request to charge the doctrine for the consideration of the jury. It thus became the duty of the court to state the rule to the jury fully and correctly, if the facts pleaded and the evidence before the jury, with the conclusions legitimately drawn therefrom, were such as to warrant the proper application...