Eckert v. Levinson

• Decision Date: 25 January 1917
• Citation: Eckert v. Levinson, 91 Conn. 338, 99 A. 699 (Conn. 1917)
• Parties: ECKERT v. LEVINSON.
• Court: Connecticut Supreme Court

99 A. 699

91 Conn. 338

ECKERT

v. LEVINSON.

Supreme Court of Errors of Connecticut.

Jan. 25, 1917.

Appeal from Court of Common Pleas, Hartford County; Edward L. Smith, Judge.

Action by Rudolph Eckert against Hyman Levinson. Judgment for plaintiff, and defendant appeals. Judgment set aside, and new trial ordered.

Andrew J. Broughel, of Hartford, for appellant. Francis J. Conti, of Hartford, for appellee.

WHEELER, J. The essential facts are few. The speedway in Riverside Park, Hartford, was neither a highway nor one of the park boulevards, but a racing course set apart by the park commissioners to be used solely for the purpose of exercising and speeding horses by permit from the park commissioners. The speedway was elliptical in shape. The direction of the racing course was to the south on the west side and to the north on the east side. The plaintiff and defendant were members of a driving club, and had a general license from the park board to use the speedway for these purposes. The defendant had knowledge of the purposes and use of the speedway.

On August 24, 1914, the plaintiff and four others were engaged in a race driving abreast and filling the course on the west side of the speedway and driving south. At this time the defendant negligently left the highway and drove in upon the speedway at the southern end, and then drove his horse attached to a four-wheeled Concord wagon at high speed in a northerly direction on the west side of the speedway and contrary to the normal direction of said race course. While so driving he was cautioned and directed to drive off the speedway, and he had ample time and opportunity to have done so. The plaintiff and defendant could see each other when 150 feet from the point of collision, and the defendant could have driven off the speedway at any time before the collision. Owing to the speed at which he was going and his position among the contestants, the second position from the pole, the plaintiff could not turn to right or left, or check his horse sufficiently to avoid the collision. The defendant's horse and wagon collided with plaintiff's horse and sulky, causing damage to plaintiff's property and person.

The trial court concluded that the defendant was guilty of gross negligence, that the plaintiff was not guilty of contributory negligence, and that the rules of the road did not apply to this speedway. A variance between the negligence complained of and that found is one of the errors assigned.

The complaint recites that the defendant carelessly drove against the road cart of the plaintiff, while the finding is that the defendant negligently drove in upon the speedway in an opposite direction from the prescribed course, with which he was familiar, when he was cautioned against driving on the course, and could have seen the 5 contestants in the race approaching him and filling the entire course, and had ample time after this caution and this view to have driven off the course to a place of safety.

All of the evidence of these facts was admissible under the general allegation of negligence of the complaint, and it is of a kind with it. There was no variance. Had the defendant desired a more particular description of the...