Brock v. Waldron

• Decision Date: 25 July 1940
• Citation: 127 Conn. 79,14 A.2d 713
• Court: Connecticut Supreme Court
• Parties: BROCK v. WALDRON et al.

14 A.2d 713

127 Conn. 79

BROCK v. WALDRON et al.

Supreme Court of Errors of Connecticut.

July 25, 1940

Appeal from Superior Court, Fairfield County; Patrick B O'Sullivan, Judge.

Action by Emma Brock, administratrix of the estate of Anton M Brock, against Merritt D. Waldron and others, to recover damages for the death of the plaintiff's intestate alleged to have been caused by the reckless, careless, and negligent conduct of the defendants, brought to the superior court and tried to the jury. From a verdict and judgment for defendants, plaintiff appeals.

No error.

Samuel Reich, Philip Reich, and A. S. Geduldig, all of Bridgeport for appellant.

Joseph G. Shapiro, James J. A. Daly, Harry A. Goldstein, and Charles S. Brody, all of Bridgeport, for appellees.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

ELLS Judge.

The complaint alleged that ‘ said decedent's death was caused solely by the reckless, careless and negligent operation of defendant's automobile,’ and assigned the usual negligence specifications. At the close of the evidence the court discovered in the requests to charge a claim of wanton misconduct and inquired of counsel, ‘ Where do you get wanton misconduct in this case?’ The reply was, ‘ If the jury found this man was driving the automobile carelessly, and should have had an idea this man would be on that road, wouldn't that be wanton misconduct?’ The court replied, ‘ I should say not. If I submit wanton misconduct and you get a verdict, you would never support it.’ Whereupon counsel said, ‘ Well then I want my verdict supported, if I get one.’ This came very close to an abandonment of the claim. New counsel appeared upon this appeal, and attempted to reconstruct the finding so as to lay a basis for the claim that the court should have submitted an issue of wanton misconduct to the jury.

The court also expressed doubt that the allegations of the complaint, recited above, supported a charge of reckless or wanton misconduct. In Leonard v. Gambardella, 120 Conn. 445, 181 A. 542, 544, where similar allegations were made, we left open the question whether ‘ a case of that character was alleged.’ The present case was argued, upon the appeal, almost exclusively upon the question whether the evidence itself supported a claim of wanton misconduct, and we therefore decide the case on that issue. We do say, however, that the complaint does not state with desirable accuracy a cause of action based on wanton misconduct. There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.

The jury could quite readily have found contributory negligence. The only effect of finding wanton misconduct would be to permit recovery notwithstanding contributory negligence. Leonard v. Gambardella, supra, 120 Conn. 449,181 A. 542. Fearing that the court's finding as to evidence offered does not support a claim that reckless misconduct was in the case, counsel seek to have it corrected, principally to show speed so great that the decedent's body was hurled one hundred and twenty feet through the air. This correction cannot be made. The evidence falls far short of supporting such a claim. The only change we are justified in making is that evidence was offered to prove that the car was going fast. That is the only testimony as to speed, except that of physical facts, and was offered by the plaintiff, a vitally interested witness occupying a seat of doubtful vantage.

The plaintiff offered evidence tending to prove that Mr. Brock was walking across a well lighted intersection; that when about half way across he was struck with great force and violence by defendant's car, proceeding easterly on Barnum Avenue, a four lane concrete highway forty feet and two inches wide; that the pavement was wet but there was sand on it, and along the southerly edge of Barnum Avenue there was a strip of ice which was about three feet wide and ran through the intersection in both directions for several hundred feet; the night was clear; the impact threw his body in the air, and after the accident it was about one hundred and twenty feet east of where he had been struck; the car was going fast; it continued to the east and ran off the road on the southerly side up onto the sidewalk after plowing through a bank of hard snow about three feet high bordering the southerly edge of the road; one of Mr. Brock's shoes was found on the highway at a point east of where the defendants' car was stuck in the snow bank; Mr. Brock died without regaining consciousness; the defendant driver did not see Mr. Brock until he was within a few feet of him; the windshield was dirty and the wiper was not in operation at the time; defendants' car skidded on the ice on the southerly side of the highway for a distance of over twenty-four feet before...