Chase v. Fitzgerald

• Citation: 45 A.2d 789,132 Conn. 461
• Court: Supreme Court of Connecticut
• Decision Date: 03 January 1946
• Parties: CHASE v. FITZGERALD et al.

132 Conn. 461

45 A.2d 789

CHASE

v.FITZGERALD et al.

Supreme Court of Errors of Connecticut.

Jan. 3, 1946.

Appeal from Superior Court, New Haven County; McEvoy, Judge.

Action by Albert E. Chase, administrator of the estate of Lillian M. Chase, deceased, against Francis Fitzgerald and others to recover damages for the death of plaintiff's intestate, allegedly caused by negligence of defendants. Verdict and judgment for plaintiff, and defendants appeal.

No error.

Lawrence L. Lewis, of Waterbury, for appellants (defendants).

Walter W. Smyth and John H. Cassidy, both of Waterbury, for appellee (plaintiff).

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

MALTBIE, Chief Justice.

The defendants appeal from the denial of motions to set aside a plaintiff's verdict on the grounds that it was against the evidence and was excessive in amount.

The jury might have found the following facts: The decedent, on October 27, 1944, having a message to deliver to the operator of a bus, planned to meet it at the junction of South Main Street, which is a state highway running south from Waterbury, and Platts Mills Road, which enters South Main Street from the west but does not cross it. The decedent was driven by her husband in his car north toward Waterbury on South Main Street, and at about 8:45 p.m. he stopped on the extreme easterly side of the street, opposite the entrance of Platts Mills Road. The bus which the decedent intended to meet came from the west on that road and its customary stop was at a stop sign just before the intersection. It had not arrived. The decedent alighted from the car on its right side, passed around its rear end and proceeded to cross the street toward the bus stop. Her husband had turned to converse with his mother, who was sitting on the rear seat, and saw the decedent pass to the rear of the car but did not see her again until after she had been struck by the defendants' car. In a matter of seconds after she left, he heard the sound of a car and a ‘thump’ opposite his left window. He got out of his car and found his wife lying in the middle of South Main Street, ninety-eight feet south of a point in the center of the road opposite the stop sign of Platts Mills Road. The decedent had been struck by the left side of the defendants' car, which was proceeding southerly on South Main Street. She suffered very severe injuries and lived only a few minutes.

South Main Street at the place of the accident is a straight concrete-surfaced highway forty-seven feet wide exclusive of the shoulders, with two lands for southbound traffic and two for northbound, and with a black tar strip three feet wide in the center. The weather was clear, there was no traffic coming from the south, and there was nothing to interfere with the defendant driver's vision of the road ahead. A street light north of the intersection shed some light over it. The concrete surface of the roadway was lightcolored, described by one witness as ‘white’ or ‘bright.’ The defendant driver did not see the decedent until he was twenty or twenty-five feet away. Despite the fact that there was a sign about five hundred feet north of the intersection designating twenty-five miles an hour as the proper speed, he was driving forth-five miles or more an hour. He did not put on his brakes or change the direction of his car before striking the decedent. The jury reasonably could conclude that he was negligent in driving his car at an excessive speed and in not seeing the decedent in time to avoid running into her.

The defendants claim that the jury could not properly have found the plaintiff free from contributory negligence. There were only two witnesses who testified that they actually saw the car strike the decedent: The defendant driver and a passenger in his car. The defendants contend that their testimony was that when the car was twenty or twenty-five feet away and proceeding in about the middle of the roadway for southbound traffic, the decedent came running slowly or ‘trotting’ into its path and was struck by it. The defendants' claim of law is that, having produced this evidence, the burden of proving contributory negligence placed upon them by statute (General Statutes, Cum.Sup.1939, § 1399e) was met, and that upon all of the evidence the decedent was guilty of contributory negligence as a matter of law. In support of their claim, they cite Hawley v. Rivolta, 131 Conn. 540, 544, 41 A.2d 104.

In that case we inadvertently applied to the statute concerning the presumption and burden of proof as to contributory negligence the interpretation we have given the statute concerning the presuumption as to a family car. General Statutes, Cum.Sup.1935, § 1658c. They are quite different in effect, as we said in O'Dea v. Amodeo, 118 Conn. 58, 64, 170 A. 486. The rule is that under § 1399e the burden of proof of contributory negligence rests throughout upon the defendant and the mere production of evidence tending to prove it does not cause the burden to revert to the plaintiff. The defendant, to prevail, must produce evidence accepted as credible by the trier and sufficient to sustain that burden. Breed v. Philgas Co., 118 Conn. 128, 136, 171 A. 14; Hatch v. Merigold, 119 Conn. 339, 342, 176 A. 266, 96 A.L.R. 1114; LeBlanc v. Grillo, 129 Conn. 378, 384, 28 A.2d 127. The jury could have refused to credit the testimony that the decedent ran out from the side of the road into the path of the car and, with no further evidence as to the immediate circumstances of the accident, have concluded that the defendants had failed to sustain the burden of proving her negligent.

The defendants make a further claim that the verdict for $9000 was excessive. The decedent was fifty-one years of age. The normal life expectancy for a woman of that age is 19.47 years. She married the plaintiff in 1941. The jury could also have found these further facts: She had been previously married and had brought up a family of seven children. She had later become estranged from her husband and had been employed as a housekeeper almost up to the time of her marriage to the plaintiff. At that time she had accumulated savings to the amount of about $100. After her marriage, she kept house for her husband and also largely took care of his mother, a woman of advanced age and in ill health, who lived next door. She had been troubled to some extent with gallstones but two or three months before the accident had been operated upon for them. At the time of the accident she was generally in good health and could work as well as anyone except that trouble with her feet prevented her standing long at a time and interfered somewhat with her getting about on them.

The situations presented by Farrell v. L. G. DeFelice & Son, Inc., 132 Conn. 81, 86, 42 A.2d 697, by this case and by Mickel v. New England Coal & Coke Co., 47 A.2d 187, argued before us at the November term, have shown us, in the light of arguments of counsel, the necessity of reviewing our decisions as to the rule of damages in death cases. Particularly are we concerned about the statement in Reynolds v. Maisto, 113 Conn. 405, 406, 155 A. 504, where we said: ‘Damages under our statute are not estimated from the standpoint of the loss caused by the death of the decedent to those who will ultimately benefit from a recovery, but they represent an increment of value coming to his estate as of the moment of his death measured by the economic loss caused by it.’ See also White v. L. Bernstein & Sons, Inc., 123 Conn. 300, 302, 194 A. 723. If this rule is read in the light of the charge of the trial court given qualified approval in Schrayer v. Bishop, 92 Conn. 677, 682, 104 A. 349, it means that the measure of damages is the amount which the decedent would probably have accumulated and left as a part of his estate had he lived. A strict application of such a rule would bring about such results as these: Where a man earned a substantial income but had no dependents and therefore was able to accumulate considerable savings, damages for his death might well amount to a large sum, whereas in the case of a man who, earning a like income, had a large family, the expense of whose support made it impossible for him to save any considerable amount, the damages would be small; and so would the award in the case of a housewife who devoted all her time and energy to her family and earned no money. Such results do not accord with the requirement in the statute that ‘just damages' shall be given. General Statutes, Cum.Sup.1939, § 1430e.

Under our statute, differing from Lord Campbell's Act in England and statutes in this county of like purport, the cause of action ‘which the executor or administrator is permitted to pursue is not one which springs from the death. It is one which comes to the representative by survival. The right of recovery for the death is as for one of the consequences of the wrong inflicted upon the decedent.’ Kling v. Torello, 87 Conn. 301, 305, 87 A. 987, 988, 46 L.R.A.,N.S., 930; Broughel v. So. New England Tel. Co., 72 Conn. 617, 623, 45 A. 435, 49 L.R.A. 404; Mezzi v. Taylor, 99 Conn. 1, 7, 120 A. 871; Wilmot v. McPadden, 78 Conn. 276, 284, 61 A. 1069; Bunnell v. Waterbury Hospital, 103 Conn. 520, 529, 131 A. 501; Davis v. Margolis, 108 Conn. 645, 648, 144 A. 665; Shaker v. Shaker, 129 Conn. 518, 520, 29 A.2d 765. It is a necessary corollary that damages under our statute are not based upon any loss caused to the family or relatives of the deceased to whom any damages recovered are to be distributed under § 4983 of the General Statutes. Goodsell v. Hartford & N. H. R. Co., 33 Conn. 51, 56; McElligott v. Randolph, 61 Conn. 157, 158, 22 A. 1094, 29 Am.St.Rep. 181; Broughel v. So. New England Tel. Co., 73 Conn. 614, 619, 48 A. 751, 84 Am.St.Rep. 176; Kling...