Dennler v. Dodge Transfer Corporation

• Decision Date: 24 January 1962
• Docket Number: Civ. A. No. 7354.
• Court: U.S. District Court — District of Connecticut
• Parties: William H. DENNLER, Adm'r of Estate of Alvin M. Mauer, Plaintiff, v. DODGE TRANSFER CORPORATION, Brooks Transportation Co., Inc., Plymouth Rock Transportation Co., and Alfred Johnson, Jr., Defendants.

201 F. Supp. 431

William H. DENNLER, Adm'r of Estate of Alvin M. Mauer, Plaintiff, v. DODGE TRANSFER CORPORATION, Brooks Transportation Co., Inc., Plymouth Rock Transportation Co., and Alfred Johnson, Jr., Defendants.

Civ. A. No. 7354.

United States District Court D. Connecticut.

January 24, 1962.

COPYRIGHT MATERIAL OMITTED

Frederick L. Comley, Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., for plaintiff.

Gregory C. Willis, Bridgeport, Conn., for Plymouth Rock Transp. Co. and Brooks Transp. Co.

Martin Gormley, Gormley & Gormley, New Haven, Conn., for Dodge Transfer Corp. and Alfred Johnson, Jr.

CLARIE, District Judge.

PART I.

This was an action for damages for wrongful death arising out of a truck-pedestrian accident which happened in the Town of Fairfield on October 3, 1957, at about 7:00 o'clock P. M. This case had been previously tried and the jury could not agree on a verdict or the answer to all of the interrogatories submitted; in this trial no interrogatories were requested. The verdict was a general plaintiff's verdict against all four defendants in the amount of $63,682.84.

Before the conclusion of the case, all of the defendants stipulated that the issues raised by the cross-claims of the parties would not be decided by the jury, but by the court. Furthermore, the jury's finding of fact, legally arrived at, would govern the court in its application of the law, when deciding the merits of the respective cross-claims.

All defendants now seek a new trial on the issues decided by the jury. It is claimed in their motion that the verdict is excessive, contrary to law and given under the influence of passion, prejudice and ignorance of the law. However, the claim that the verdict was excessive, was abandoned by the defendants at the hearing on this motion; hence it need not be considered here.

The defendants Johnson and Dodge Transfer Corporation claim that the jury could not reasonably have found the plaintiff, Dr. Mauer, free from contributory negligence, and his own negligence was not a material factor in causing his injuries and resulting death; and if such were the case it would bar a recovery by his estate in this action. Furthermore, error is claimed, because the court charged the jury on the doctrine of last clear chance. The defendants assert, that inasmuch as the defendant driver, Johnson, did not see the decedent prior to the truck's striking him, one of the essential elements of the doctrine has not been proven.

This latter reason advanced by the defendants is obviously untenable for several reasons. When the court's charge was given on the last clear chance doctrine, neither of defendants' counsel objected thereto. Rule #51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides in part, "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Therefore, it is untimely to make such a claim after the verdict has been accepted.

Furthermore, the four essential elements of the doctrine are: (1) that the injured party has already come into a position of peril; (2) that the injuring party then or thereafter becomes or in the exercise of ordinary prudence ought to have become aware, not merely 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) that the injuring party subsequently has the opportunity, by the exercise of reasonable care to save the other from harm; (4) that he fails to exercise such care. Richard v. New York, N. H. & H. R. Co., 104 Conn. 229, 235, 132 A. 451 (1926). Thus, it is not an essential condition for the application of this doctrine, that the injuring party did or did not see the plaintiff, if in the exercise of ordinary prudence he ought to have become aware of his presence.

In this case the jury could have reasonably found that the driver Johnson ought to have seen the plaintiff, Dr. Mauer. He admitted seeing his wife, who left the center island esplanade together with her husband to cross the remaining two lanes of the roadway. There was substantial evidence that the doctor and his wife were only four or five steps apart as they crossed the highway; for the driver to see Mrs. Mauer and not her husband would unquestionably justify the jury's finding that the driver, by the exercise of ordinary prudence, should have seen the decedent in the zone of danger. The zone of danger in this instance included the two lanes of roadway on the north side of the center esplanade at the scene of the accident. Finally, it should be noted that the verdict was a general one without interrogatories; there was other evidence of negligence of the defendant which the jury could have found without considering or applying this doctrine.

The defendants' additional claim, that the jury could not reasonably have found the plaintiff's decedent was free from contributory negligence which materially contributed to the accident, is a question of fact within the province of the jury. "A verdict which is against the preponderance of the evidence, or against the weight, or even the great weight of the evidence, or reaches a conclusion which the court upon an examination of the evidence would not have reached, will not be set aside upon either of these grounds." Richard v. New York, N. H. & H. R. Co., 104 Conn. 229, 232, 132 A. 451, 452 (1926); Hewitt v. Wheeler, 23 Conn. 284, 302 (1854); Hill v. Bennett, 23 Conn. 363, 365 (1854). Similarly, the verdict will not be set aside where the evidence is conflicting, unless its manifest injustice is "so plain and palpable as to justify the suspicion that the jury or some of its members were influenced by prejudice, corruption, or partiality." Roma v. Thames River Specialties Co., 90 Conn. 18, 19, 96 A. 169 (1915); Donovan v. Connecticut Co., 86 Conn. 82, 85, 84 A. 288 (1912). If on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence. Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 154, 139 A.2d 812 (1958).

The essential facts of the case pertaining to this issue, which the jury might reasonably have found are these: It was dusk on October 3, 1957 shortly after 7:00 o'clock P.M., when the accident occurred. The plaintiff decedent, Dr. Mauer, and his wife left the Pequot Motel on the south side of the Boston Post Road to look for a place to eat. The immediate area was commercial; it included a motel, a restaurant, two gasoline stations (one on either side of the highway) and several small businesses. The highway runs generally east and west and an esplanade in the center separates the four-lane highway at the scene; there were no pedestrian sidewalks in the area. The street lights were lighted; one was located in the immediate area as identified on the map, plaintiff's Exhibit B, at the intersection of the Post Road and Center Street; in addition there was the artificial light of the gas stations and the motel. The topography of the roadway permitted visibility from the east toward the accident location for several hundred feet; there was but a one-two percent rise in the grade of the road westerly; the pavement was dry, the weather clear. There was no designated cross-walk at the point of decedent's crossing.

Dr. Mauer and his wife, after having crossed the two southerly lanes from the south toward the north, stopped about one foot east of the island esplanade and waited for traffic to pass. They looked for approaching traffic and saw the lights of the defendants' vehicle approaching from the east approximately 500-600 feet away; Dr. Mauer said, "Let's go, I think we can make this one." The two started to go across together. The doctor hesitated momentarily and then proceeded; four to five steps separated him and his wife as they crossed perpendicular to the highway. There was no evidence that either of them continued to watch the approaching defendants' vehicle, as they proceeded. Mrs. Mauer jumped as the truck was about to hit her and avoided the contact.

The driver of the truck admitted seeing Mrs. Mauer crossing the highway 150 feet away but denied seeing the decedent; the driver at no time prior to hitting the decedent applied his brakes. He testified to taking his foot off the gas pedal and eased his vehicle over from the extreme right hand lane to the left, so that he might avoid Mrs. Mauer, and his vehicle straddled the tarred line separating the two concrete lanes. It was while travelling in that location on the roadway that he felt the impact of the decedent's body. He admitted that when he first saw Mrs. Mauer he was travelling about 30-35 miles per hour and could have braked and stopped his truck before reaching her; however, it was not until the impact that he first applied his brakes.

Section 52-114 of the Connecticut General Statutes, Revision of 1958, provides in part: "In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon (them) * * *."

The statutory presumption in this case, therefore, was that Dr. Mauer was in the exercise of reasonable care at the time he was struck. The defendants alleged and it is their burden to prove by a fair preponderance of the evidence, that the plaintiff...