Deutsch v. Connecticut Co.

• Decision Date: 01 March 1923
• Citation: 119 A. 891,98 Conn. 482
• Court: Connecticut Supreme Court
• Parties: DEUTSCH v. CONNECTICUT CO.

119 A. 891

98 Conn. 482

DEUTSCH v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

March 1, 1923

Appeal from Superior Court, Hartford County; L. P. Waldo Marvin Judge.

Action by Anne Deutsch, administratrix, against the Connecticut Company. Judgment for defendant, and plaintiff appeals. No error.

While one barred by contributory negligence from recovering for an injury is not barred from recovering for negligence resulting in injury following, but distinct from that previously inflicted, if no further contributory negligence appears, the court did not err in directing a verdict for defendant in an action for the death of one struck by a street car though the jury might have found that the motorman was negligent in not taking note of decedent's position thereunder before backing up after stopping, where there was no evidence as to what injuries were caused thereby and what were inflicted before the car was stopped.

Mortimer H. Camp, of New Britain, for appellant.

Joseph F. Berry, of Hartford, for appellee.

KEELER, J.

At the conclusion of plaintiff's case, defendant put in evidence a statement by plaintiff's intestate verified by the testimony of the defendant's investigator, rested and moved for a directed verdict in its favor on the ground that the plaintiff had failed to show due care on the part of the deceased, and freedom from negligence proximately and efficiently contributing to the injury. In the argument before the superior court and in this court, the negligence of defendant's motorman was assumed, and had the case gone to the jury there was abundant evidence to establish this fact.

It appears that the deceased was struck by defendant's car on Main street, New Britain, April 15, 1920, shortly after 6 o'clock p. m., and received injuries from which he died April 21, 1920. It was daylight and the day was pleasant. The occurrence took place on Main street at a point a little north of the tracks of the New York, New Haven & Hartford Railroad Company, at a grade crossing. Main street here runs north and south for a considerable distance. The trolley car which struck the deceased was south bound and moving on the west track. The deceased was struck, and carried along the pavement by the fender of the car until it stopped. At the time the gates at the crossing were up. The trolley cars were required to stop before crossing the railroad tracks, and it was the custom to stop all south-bound trolley cars a few feet north of the north crossing gates. The trolley car was brought to a stop on the railroad crossing 8 to 12 feet south of the customary stopping place of defendant's cars. After stopping, defendant's motorman immediately reversed his car without leaving it. The deceased was still engaged with the car and was rolled over and over under the car and carried back to a point a few feet north of the north crossing gates when lowered. The wheel of the car did not at any time pass over decedent, and most of the time his position was between the fender and the forward step of the car. No warning of the approach of the car was given by the motorman. When the car struck decedent, people on the street were shouting to the motorman to stop the car. The distance between the curb and the outer rail was 10 feet at a right angle, and between 12 and 13 feet at an angle of 45 degrees.

By reason of the collision the deceased incurred a fracture of the two bones of the lower end of the left forearm; one bone sustained a comminuted fracture; both bones were broken; he also had a fracture of the third, fourth, fifth, sixth seventh, and eighth ribs posteriorly on the left side; a fracture of the second, third, fourth, fifth, sixth, and seventh ribs posteriorly on the right side. The fractures of the third, fourth, and fifth ribs on the left side were comminuted fractures. The injury to the ribs was the cause of death.

All of the above facts were not in dispute, and could have been found by the jury upon the testimony in the case.

Just before the deceased crossed the part of the street between the curb and the nearest rail of the street railway, an automobile driven southerly upon the west side of the street passed by the deceased as he was about to cross. Louis Edelson, the only witness produced who observed the transaction from the time deceased left the curb until he was struck, testified that from the window of his office overlooking Main street he saw decedent try to cross the street, take a step or two, and then return to the sidewalk, and as quick as the automobile passed by he tried to cross over the street in a slanting direction when the car came along, knocked him down, caught him, and dragged him along to and upon the railroad crossing under the front of the car on the right-hand side.

The wife of the deceased, testifying to a conversation with him after his injury, said that he said to her that the automobile was " nice" past, and when asked whether her husband said that he had stepped into the street ahead of the automobile or behind it, answered:

" Behind it, I guess. He don't say nothing. He just say it was past, but he don't say what way. He just say he was coming [to] go cross the street and he was nice past the automobile and the car struck him and he cannot help himself."

In another part of her testimony she said her husband told her " he was cross the street, passing an automobile come and he don't see car, and he cannot help himself."

Decedent in his statement made to defendant's investigator (defendant's Exhibit 1) gives the following version of the event:

" About 6:07 p. m., I was walking home from the shop on Main street. I started to cross from my right to my left side of the street opposite the Connecticut Lunch, when I saw an automobile coming to the city. I jumped out of the way of the auto onto the trolley track when the trolley car struck me. I did not see the trolley car coming at all. I was watching the auto, so I did not see the car coming. I don't know how far the car was away when I got on the track. The car knocked me down and rolled me along a little. I don't know how far the car went after it struck me. It broke my left arm below the elbow.

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