Childs v. Blesso

• Decision Date: 16 July 1969
• Citation: 260 A.2d 582,158 Conn. 389
• Court: Connecticut Supreme Court
• Parties: Carol CHILDS et al. v. Muriel BLESSO et al.

Page 582

260 A.2d 582

158 Conn. 389

Carol CHILDS et al. v. Muriel BLESSO et al.

Supreme Court of Connecticut.

July 16, 1969.

John F. Scully, Hartford, with whom, on the brief, was David T. Ryan, Hartford, for appellants (defendants).

John A. Spector, Hartford, with whom, on the brief, was David E. Kamins, Hartford, for appellees (plaintiffs).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ. THIM, Associate Justice.

Carol Childs, a minor, was injured when an automobile driven by the defendant Mrs. Muriel Blesso ran over her foot. Carol and her mother brother a negligence action against Mrs. Blesso and the Blesso Plumbing and Heating Company, the owner of the car which Mrs. Blesso was driving. The defendants pleaded contributory negligence as their sole special defense. After the case had been tried to a jury, verdicts were rendered in favor of the plaintiffs. The defendants have appealed, claiming that the trial court erred in charging the jury on the doctrine of last clear chance and by not allowing them to question each prospective juror outside of the presence of the other prospective jurors.

The parties claim to have proved the following facts: Carol Childs attended the kindergarten class at St. Michael's school, which is on Clark Street in Hartford. On May 29, 1963, at about 12:30 p.m., Carol was skipping down the center of the school driveway. She saw the defendant's vehicle approaching and tried to stop at the juncture of the sidewalk and the driveway ramp. It was raining at the time. Instead of stopping, however, Carol slipped and fell on the driveway ramp with her left foot extnded about one foot into the street. The driveway to St. Michael's school is eighteen feet wide and on the north adjoins another driveway appurtenant to the neighboring house. A sloping ramp thirty-five feet wide leads to both of these driveways. At the time that Carol fell and extended her foot into the street, the defendants' car was at the farthermost part of the driveway which adjoins the school driveway. When Carol fell, Mrs. Blesso was taking her daughter to St. Michael's school and was driving at a slow rate of speed. Mrs. Blesso did not see Carol fall, but her view may have been partially obstructed owing to shrubbery which was on the northerly side of the school driveway. There was a time interval of two of five seconds between the time that Carol's foot extended into the street and the time of the accident. The plaintiffs also claimed to have proved that during this interval, two bystanders shouted to Mrs. Blesso to warn her that Carol was in the path of her vehicle and that despite these warnings, the defendant's car ran over Carol's foot, and Mrs. Blesso did not turn the car to the left in order to avoid the accident.

The defendants assert in their claims of proof that Mrs. Blesso saw Carol fall and that, thereupon, she immediately stopped the car. It is the defendant's claim that Carol's fall and the accident happened almost instantly.

There are four elements to the doctrine of last clear chance: (1) The injured party, by his own negligence, has already come into a position of peril; (2) 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) the injuring party subsequently has the opportunity by the exercise of reasonable care to save the other from harm; and (4) he fails to exercise such care. Intelisano v. Greenwell, 155 Conn. 436, 444, 232 A.2d 490; Middletown Trust Co. v. Armour & Co., 122 Conn. 615, 617, 618, 191 A. 532; Correnti v. Catino, 115 Conn. 213, 217, 160 A. 892; Fine v. Connecticut Co., 92 Conn. 626, 631, 103 A. 901.

The doctrine of last clear chance does not apply in a case unless there is a reasonable basis for finding that the plaintiff was negligent. Vignone v. Pierce & Norton Co., 130 Conn. 309, 316, 317, 33 A.2d 427. Once the evidence in the present case disclosed a reasonable basis for finding that the named plaintiff was negligent in one or more of the ways alleged in the special defense, it was the plaintiffs' burden to prove any additional facts essential to the applicability of the doctrine of last clear chance. Ibid.; Correnti v. Catino, supra, 115 Conn. 216, 160 A. 892. Moreover, the trial court should not charge the jury on the doctrine of last clear chance unless there would be a reasonable basis for finding each and all of the constituent elements of last clear chance. Germon v. Noe, 129 Conn. 333, 336, 27 A.2d 378; Rix v. Stone, 115 Conn. 658, 663, 163 A. 258; Correnti v. Catino, supra.

Upon the claims of proof in this case, the trial court was correct in charging the jury on the doctrine of last clear chance. Carol entered into the position of peril when her...