di Leo v. Dolinsky

• Decision Date: 23 June 1942
• Citation: 27 A.2d 126,120 Conn. 203
• Court: Connecticut Supreme Court
• Parties: DI LEO v. DOLINSKY.

27 A.2d 126

120 Conn. 203

DI LEO

v. DOLINSKY.

Supreme Court of Errors of Connecticut.

June 23, 1942.

JENNINGS, J., dissenting in part.

Appeal from Superior Court, Litchfield County; Wynne, Judge.

Action by William Vito Di Leo against Morris H. Dolinsky to recover damages for personal injuries alleged to have been caused by negligence of defendant's servant in operation of defendant's truck. There was a verdict and judgment for plaintiff, and defendant appeals.

Error, and new trial ordered nisi.

Before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

DeLancey Pelgrift, of Hartford, for appellant.

Edward Mascolo, of Waterbury, for appellee.

AVERY, Judge.

At about 4:30 in the afternoon of April 19, 1940, the plaintiff, a boy nearly ten years old, was injured by a truck owned by the defendant and operated by his agent. This suit was brought by the plaintiff to recover on the ground that his injuries were caused by the negligence of the defendant's servant in the operation of the truck. After trial to the jury, the plaintiff received a verdict and the defendant has appealed, claiming that the trial court erred in denying the defendant's motion to set aside the verdict and that the damages were excessive.

The evidence in this case in certain respects was very much in conflict. Taking the view most favorable to the plaintiff, the jury might reasonably have found: The plaintiff's injuries were received in the highway at the intersection of Harwinton Avenue and Raiano Street in Torrington. At that point, Harwinton Avenue, which runs north and south, is about nineteen feet in width and is intersected upon the west by Raiano Street. Between two and three hundred feet north of the intersection there was a schoolhouse on the westerly side of Harwinton Avenue, and just south of the intersection there was a school caution sign on the easterly side. The defendant's truck was proceeding northerly on Harwinton Avenue. A group of children were playing in the street at the intersection. As the truck approached, the plaintiff ran diagonally across the southwest corner of the intersection in a northeasterly direction towards a path leading to his home on the east side of Harwinton Avenue. He was struck by the left side of the front bumper when he was nearly across the street. He could have been seen crossing the street by the driver when the truck was at least one hundred feet away, and from the testimony offered, taking into consideration the distance traveled by the truck after the boy could be seen crossing the road and the distance traveled by it after striking the boy before coming to a stop, there was a reasonable basis in the evidence upon which the jury could have found that the truck was proceeding at an unreasonable rate of speed, considering all the circumstances, and that the driver was not keeping a reasonable lookout or exercising reasonable control over the vehicle.

The defendant contends that the plaintiff ran into the side of the motor vehicle after the front end had passed him. Upon this point, however, the evidence was conflicting. There was evidence upon which the jury could reasonably have found that the plaintiff was struck by the truck's front bumper when he had nearly reached the east side of the highway. If they found that the plaintiff started to run across when the truck was still a considerable distance away and was struck and injured when he had almost reached the opposite side, such conduct could not be said to constitute contributory negligence as a matter of law. Contributory negligence in the case of children is a question of fact to be determined by the jury, taking into consideration...