Caplan v. Arndt

• Decision Date: 05 January 1938
• Citation: 123 Conn. 585,196 A. 631
• Court: Connecticut Supreme Court
• Parties: CAPLAN v. ARNDT et al.

196 A. 631

123 Conn. 585

CAPLAN v. ARNDT et al.

Supreme Court of Errors of Connecticut.

January 5, 1938

Appeal from Superior Court, New Haven County; Ernest A. Inglis Judge.

Action by Morris Caplan against Harold Arndt and another to recover damages for personal injuries, alleged to have been caused by the negligence of defendants. Judgment for defendants, and plaintiff appeals.

No error.

Alexander Winnick and Max H. Schwartz, both of New Haven, for appellant.

Charles A. Watrous, John B. Grant, and J. Stephen Knight, all of New Haven, for appellee.

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

JENNINGS, Judge.

The plaintiff, a pedestrian, was struck by a light truck owned by the named defendant and driven by the other defendant, Kleber, as his agent, while the plaintiff was crossing Dixwell avenue in New Haven. The plaintiff, in his appeal, seeks to secure numerous corrections in the finding. These corrections, if granted, would result in a finding which would not support the conclusions of the trial court.

There were only two witnesses of the accident, the plaintiff and Kleber. A comparison of their testimony with the facts found discloses that the court did not accept that of either in its entirety. This was its right. Shupack v. Gordon, 79 Conn. 298, 302, 64 A. 740; Roberti v. Barbieri, 105 Conn. 539, 542, 136 A. 85. It apparently took that part of the testimony of each which most closely conformed to the probabilities of the situation, the circumstantial evidence, such as marks on the highway, and such testimony as was available as to the conditions existing and made its finding accordingly. Considering the testimony and exhibits as a whole, no material fact was found without evidence nor was any material undisputed fact omitted. The brief of the defendants contained a careful tabulation of the corrections sought with references to relevant pages of the record. This method has received the approval of this court and made the task of passing on the corrections of the finding much easier than it would have been without this assistance. No corrections in the finding which will benefit the plaintiff can be made.

The plaintiff, wearing dark clothing, walked north on the west side of Dixwell avenue, which is 51 feet wide. He saw the lights of a car approaching from the north. He started to cross Dixwell avenue at a point about 10 feet south of the south line marking the southerly crosswalk at the intersection of West Division street and Dixwell avenue and did not again look to the north. He was carrying a small dog on his left shoulder. He continued to advance at a slow walk until he was struck. It was dark and the intersection was poorly lighted.

Kleber, as agent of Arndt, was driving the latter's small truck, equipped with lighted standard headlights, south on Dixwell avenue on the most westerly of the four trolley rails at a speed under 30 miles per hour. When he was about 30 feet from the plaintiff, he saw the latter directly in front of him. He immediately applied his brakes and, after proceeding a few feet, turned his truck sharply to the left to avoid the plaintiff. In the meantime the plaintiff had continued to walk across the street and, when he had reached a point between the two sets of trolley tracks, his right foot, as he extended it forward in taking a step, was run over by the right front wheel of the truck. When the truck stopped between the rails of the northbound track, the plaintiff was lying opposite the right-hand door of the truck. Brake marks made by the truck began at about the center of the southerly crosswalk on the most westerly rail and extended for 27 feet to the point where the truck stopped.

The plaintiff claimed that the defendant was guilty of wanton misconduct, but there is nothing in the finding to support this claim. The court reached the conclusion that the plaintiff was guilty of contributory negligence which was a substantial factor in causing his injuries. This was a question of fact. Russell v. Vergason, 95 Conn. 431, 436, 111 A. 625; Woodhull v. Connecticut Co., 100 Conn. 361, 365, 124 A. 42; Perry v. Haritos, 100 Conn. 476, 480, 124 A. 44; Puza v. Hamway, 123 Conn. 205, 211, 193 A. 776. The court was not in error in reaching this conclusion on the facts found.

The plaintiff's principal claim in oral argument was that judgment should have been rendered in his favor on the basis of the last clear chance doctrine. The conditions under which that doctrine applies are well established. They are: ‘ (1) That the injured party has already come into a position of peril; (2) that the injuring party then or thereafter becomes, or in the exercise of ordinary prudence ought to have become, aware not only of that fact, but also that the party in peril either reasonably cannot escape from it, or apparently will not avail himself of opportunities open to him for doing so; (3) that the injuring party subsequently has the opportunity by the exercise of reasonable care to save the other from harm; and (4) that he fails to exercise such care.’ Fine v. Connecticut Co., 92 Conn 626, 631, 103 A. 901, 902; Correnti v. Catino, 115 Conn. 213, 217, 160 A. 892. In the Correnti Case, 115 Conn. 213, at page 225, 160 A. 892, 896, we said: ‘ Where both the pedestrian and the driver of the automobile proceed in their course to the moment of collision, and the former does not come into the position of peril from the automobile until substantially the instant he...