O'Connor v. Conn. Ry. & Lighting Co.

• Decision Date: 25 May 1909
• Citation: 82 Conn. 170,72 A. 934
• Parties: O'CONNOR v. CONNECTICUT RY. & LIGHTING CO.
• Court: Connecticut Supreme Court

72 A. 934

82 Conn. 170

O'CONNOR

v. CONNECTICUT RY. & LIGHTING CO.

Supreme Court of Errors of Connecticut.

May 25, 1909.

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action by Joseph O'Connor against the Connecticut Railway & Lighting Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Harry G. Day and Thomas M. Steele, for appellant. Charles S. Hamilton and James F. Torrance, for appellee.

HALL, J. The jury having returned a verdict for the plaintiff for $4,000 for the physical injuries sustained by him from a collision between the defendant's electric street railway car and a team driven by the plaintiff, the defendant moved that it be set aside "as contrary to the law and the evidence, and because the damages were excessive." The trial judge filed a memorandum of decision stating, in effect, that the verdict would be set aside as excessive in amount, unless the plaintiff filed a remittitur on a part of said sum and accepted a judgment of $2,500. The plaintiff filed a remittitur of $1,500, and the court thereupon denied said motion and directed judgment to be entered up for the plaintiff for $2,500. The defendant appeals upon the ground that the court erred in not setting aside the entire verdict.

The evidence certified to this court shows that the accident in question occurred between 7 and 8 o'clock, on a dark evening of October, 1906, on Derby avenue, in the town of Derby. Derby avenue is a macadamized street, running at this place nearly north and south; the grade ascending slightly toward the north. It is about 33 feet wide between curbs, and the defendant's single electric street railway tracks run substantially in the center of the street. There was an electric street light about 400 feet south, and another about 800 feet north, of the place of the accident, and for a distance of some 400 feet from the place of the collision there was no obstruction to the view of an approaching car. The plaintiff, who was about 50 years old and was familiar with the place, while driving southerly an empty one-horse coal cart, and crossing the railway track diagonally from the easterly to the westerly side thereof, was struck by the defendant's closed electric car going north. The headlight and inside lights of the car were burning. There was a conflict of testimony as to the speed of the car, some witnesses testifying that it was going very fast, and others that it was moving at a moderate rate of speed; and there was also some conflict of testimony as to whether or not the car gong was sounded just before the collision.

The principal contention of the defendant is that the evidence either shows affirmatively that the plaintiff's negligence essentially contributed to cause his injury, or, if not, that it at least shows a failure upon his part to sustain the burden which the law imposes upon him to prove that he was in the exercise of reasonable care at the time of the accident. In support of this claim the defendant says that the plaintiff himself testified at the trial that he did not look for an approaching car until he was on the...