Clark Dairy, Inc. v. Feeley

• Decision Date: 03 December 1935
• Citation: Clark Dairy, Inc. v. Feeley, 181 A. 626, 120 Conn. 557 (Conn. 1935)
• Court: Connecticut Supreme Court
• Parties: CLARK DAIRY, Inc., v. FEELEY.

181 A. 626

120 Conn. 557

CLARK DAIRY, Inc., v. FEELEY.

Supreme Court of Errors of Connecticut.

December 3, 1935

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action by the Clark Dairy, Inc., against Jeremiah J. Feeley, to recover for damage to plaintiff's truck alleged to have been caused by defendant's negligence. From an order setting aside a verdict for the plaintiff as against the evidence, plaintiff appeals.

Error and cause remanded, with directions to enter judgment upon the verdict.

HINMAN and BANKS, JJ., dissenting.

Contributory negligence of truck driver who collided with trolley car at intersection held question for jury, under evidence that view of approaching trolley car from street was obstructed by numerous trees and trolley station.

Thomas R. Robinson and Daniel L. O'Neill, both of New Haven, for appellant.

Edwin H. Hall, of New Haven, and Walter A. Mulvihill, of New York City, for appellee.

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

AVERY Judge.

This case, which arose out of a collision between plaintiff's truck and a trolley car operated by the defendant, was tried to the jury and a verdict rendered in favor of the plaintiff which the court, on defendant's motion, set aside upon the ground that the jury could not reasonably have found that the operator of plaintiff's truck was free from contributory negligence. The only error assigned upon this appeal is the action of the court in setting aside the plaintiff's verdict. It is not controverted that there was evidence from which the jury might reasonably have found that the defendant was negligent.

Giving the most favorable construction to the plaintiff's claims which the evidence would reasonably admit, the jury might have found the essential facts as follows: At Morningside Woodmont, Conn., there is a traveled way known as Yale avenue which crosses the trolley tracks of the Connecticut Company. At the point of crossing, Yale avenue runs approximately east and west, and a double line of trolley tracks runs approximately northeast and southwest. Westbound traffic proceeds over the two northerly rails, and eastbound traffic over the two southerly. About 5 feet northerly from the most northerly rail and about 15 or 20 feet from the crossing is a light pole, and three other poles are placed at intervals of 100 feet east, the same distance from the track. There is a station about 40 feet north of the crossing on the northerly side of the westbound tracks and about 10 feet north of the northerly rail. This station is rectangular in shape, approximately 18 feet on each side. The construction is solid half-way to the roof, which is supported by posts, so that between the solid construction and the roof and between the posts it was possible to look through the station. It is wooded all around the station on both sides of the crossing. On the north are numerous trees obstructing the view from Yale avenue of a trolley car approaching from the northeast.

The plaintiff's truck was being operated by Morris Perlroth delivering milk to people residing in the locality. On February 10, 1934, at about 9.30 in the morning, while proceeding easterly on Yale avenue, it came into collision with a Connecticut Company trolley which was being operated in the direction from New Haven toward Bridgeport. There were but two witnesses of the collision; the truck driver and the motorman. The driver of plaintiff's truck was familiar with the intersection and knew the likelihood of trolley cars passing. He testified that as he approached the tracks, he looked to his left, the direction from which the car was approaching, at least three times; first, as he turned into Yale avenue, then being distant about 300 feet from the crossing; again when about 150 feet distant; and again at 20 feet. He did not see the car until the truck was on the track and its front wheels were over the northerly rail of the eastbound track. At that time, the trolley was 8 or 10 feet from him and approaching at a fast rate of speed. He heard no warning...