O'Connor v. Zavaritis

• Decision Date: 20 July 1920
• Citation: 110 A. 878,95 Conn. 111
• Parties: O'CONNOR v. ZAVARITIS.
• Court: Connecticut Supreme Court

110 A. 878

95 Conn. 111

O'CONNOR v. ZAVARITIS.

Supreme Court of Errors of Connecticut.

July 20, 1920

Appeal from Superior Court, New London County; Donald T. Warner Judge.

Action by Daniel F. O'Connor, administrator against Harry Zavaritis. From judgment for plaintiff and from denial of defendant's motion to set aside verdict, the latter appeals. No error.

Arthur M. Brown and Charles V. James, both of Norwich, and Thomas E Troland, of New London, for appellant.

Arthur T. Keefe, of New London, for appellee.

GAGER J.

This action is brought by the administrator of his deceased wife to recover damages for her death, claimed to have been caused by the negligence of the defendant in driving a heavy seven-passenger touring car upon Thames street, in Groton, at an excessive and dangerous rate of speed, striking the deceased from the rear with such force as to throw her some 60 feet ahead and then running over her with both right-hand wheels, causing such injuries that she died about half or three-quarters of an hour later. The defendant offered no evidence. The jury rendered a verdict for the plaintiff for $10,000 damages. The defendant appeals because the verdict was against the evidence and was excessive, for the refusal of the court to discharge the jury because of certain remarks made in argument by plaintiff's counsel, and for errors in the charge.

In appealing on the ground that the verdict was against the evidence, the only point urged by the defendant is that the jury were not warranted in finding that the deceased was free from contributory negligence. Referring briefly to the situation, it appears the jury might easily have found that Thames street running north and south had a concrete roadbed 26 feet 10 1/2 inches wide. A trolley track was located on the westerly part, and the concrete roadbed easterly of the easterly rail of the trolley track was 20 feet 2 inches in width. On the west there was no walk. On the east there was no walk other than the natural soil, starting about on a level with the concrete, some 8 to 10 feet in width, and rising slightly to the east. It was the custom of pedestrians going in either direction at this point to walk along the easterly edge of the concrete. No specific provision for pedestrians was made. The plaintiff and his wife were walking southerly on their left and the easterly edge of the concrete roadbed, facing cars coming on the side of the street on which they were walking. The plaintiff and his wife, having just stepped off the concrete to allow a car coming towards them to pass, were stepping back to the edge of the concrete. The plaintiff administrator and his wife were walking side by side, he upon her right, and when he had reached the edge of the concrete his wife was still upon the dirt part of the roadway. The car for which they had just stepped aside having passed, neither the plaintiff nor his wife looked back as they were stepping towards the concrete. At that moment two or three cars were passing them going southerly on the westerly side of the concrete, and the defendant, at the rear of this line of cars, going at a high rate of speed, 35 to 60 miles an hour, drew out to pass the cars ahead, swung clear to the left, and, without warning struck the deceased, still upon the dirt road, with such force as to throw her upwards of 60 feet ahead, when, as she fell, both of his right wheels ran over her. The jury could also have found that there was sufficient room for the defendant to have passed safely between the cars ahead of him and the deceased and her husband. The court repeatedly and adequately called the attention of the jury to the necessity of showing due care on the part of the deceased before the plaintiff could recover. We think that the jury were, upon the fact, amply justified in finding, as they must have done, no contributory negligence on the part of the deceased, and that the statement of facts shows no situation which rendered it negligent for the deceased to be upon the dirt roadway without at that moment looking back, although she was near the edge of the concrete.

The defendant further claims that the court erred in denying defendant's motion that the jury be discharged from the trial of the case upon the ground that during the argument by one of plaintiff's counsel he said, " The defendant's sympathy for the plaintiff is the sympathy that affects his pocketbook, which lies pretty near his heart, and the insurance company which is with him in this matter; " and upon the ground that said counsel also referred to the defense of the case by an insurance company. The finding shows that-

" In the statement of counsel on the nature of the case preliminary to impaneling the jury counsel for the plaintiff, without objection on the part of the defendant's counsel, requested that if any juror were related to either party to the controversy or a stockholder or agent in the Travelers' Insurance Company to make it known."

In the opening part of his charge the court said:

" I should say to you here, right at the outset, that you are not to consider at all the question of whether or not Harry Zavaritis, the defendant, was insured. It has no bearing whatever and should have none in your consideration of this case. It is only the question of whether the negligence of the defendant was the proximate cause of the injury and death of Ellen O'Connor. That is the issue. And whether, of course, the plaintiff herself contributed to that accident by her negligence. So dismiss the question of whether he was insured or not absolutely from your minds, as it has no bearing whatever upon the issues you are called upon to try in this case."

We also must take notice of the practice of every prudent owner of an automobile to insure against accidents, which practice, followed by the defendant, had already been called to the attention of the jury when impaneled and again during the trial when it was testified that the defendant in a statement had referred to his insurance. The jury were in this statement told nothing they did not know before. The inference is, though it does not clearly appear in the finding, that the remark may have had its basis in some statement of sympathy by counsel for the defendant. The jury are deemed to be ordinarily reasonable men, and in view of the instructions we do not think the denial of the motion was reversible error.

The defendant also claims that the verdict should be set aside on the ground that the damages assessed were excessive. The statute provides for " just damages not exceeding $10,000," whether the death is " instantaneous or otherwise." Statutes, § 6137. In the present case the damages were assessed at $10,000. The charge upon the measure of damages in the case of death is not complained of and must be deemed adequate. The facts appearing were that the deceased was a young married woman 24 or 25 years af age, the mother of two children, one about two years old and the other four months old; that she was strong, physically well, and had never been ill, and that she lived some three-quarters of an hour after she was struck, during which time she was, to some extent at least, conscious and that physical pain and suffering must have attended the injury, and there was nothing to show she had not ordinary mental capacity. The matter of damages for death has been several times before this court and needs no extended consideration here. Of the more recent cases we may refer to Broughel, Adm'r, v. Southern New England Telephone Co., 73 Conn. 614, 48 A. 751, 84 Am.St.Rep. 176; Nelson, Adm'r, v. Branford L. & W. Co., ...