Film v. Downing & Perkins Inc.

• Decision Date: 24 May 1949
• Citation: 135 Conn. 524,66 A.2d 613
• Court: Connecticut Supreme Court
• Parties: FILM v. DOWNING & PERKINS, Inc. et al.

135 Conn. 524

66 A.2d 613

FILM

v.DOWNING & PERKINS, Inc. et al.

Supreme Court of Errors of Connecticut.

May 24, 1949.

Appeal from Superior Court, Hartford County; Alcorn, Judge.

Action by Harriet Film against Downing & Perkins, Inc., and another to recover damages for personal injuries and property damage alleged to have been caused by the negligence of the defendant, which was tried to jury. There was a verdict and judgment for the defendants, and the plaintiff appeals.

Error and new trial ordered.

Jacob Schwolsky, Hartford, with whom was Henry J. Goldberg, Hartford, for the appellant (plaintiff).

Bradley B. Bates, Hartford, with whom was Cyril Coleman, Hartford, for the appellees (defendants).

Before MALTBIE, C. J., and BROWN, ELLS and JENNINGS, JJ., and INGLIS, Superior Court J.

ELLS, Judge.

This is an action for damages arising from a collision between an automobile driven by the plaintiff and a car owned by the defendant Downing & Perkins, Inc., and operated by its employee, the defendant Dunbar, hereinafter referred to as the defendant. The plaintiff has appealed from the judgment entered upon a verdict for the defendants, assigning error in the charge.

The plaintiff offered evidence to prove and claimed to have proved the following facts: On June 1, 1947, her car had been parked on the west side of Garden Street in Hartford headed south. She entered it about 5:30 o'clock in the afternoon for the purpose of driving it into her garage, located on the opposite side of the street. When she started the automobile she saw the defendant's car. It was coming north on Garden Street and was several hundred feet away. The plaintiff drove her car about fifty feet south on Garden Street, gave a hand signal indicating her intention to turn and then turned directly across the street to her driveway at about five miles per hour. She stopped at the entrance to the driveway to shift into first gear. At that time the defendant's car was proceeding north on Garden Street at an excessive speed. It was more than 105 feet away, at an intersection. The defendant did not reduce his speed and continued to operate his car in a straight direction, without swerving at any time, until it struck the center of the plaintiff's automobile on its right side. He did not see the plaintiff's car until a moment before the collision.

The defendant claimed that he was proceeding at about twenty-five miles an hour and that when he was about twenty-five feet from the plaintiff she suddenly made a sharp left turn across Garden Street directly in the path of his automobile. He denied the plaintiff's allegations of negligence and affirmatively pleaded that she was guilty of contributory negligence.

The following charge was excepted to under Practice Book § 156 and was assigned as error: ‘I should add to what I have already said concerning the duty of care in this situation that in turning from her own line of travel at substantially right angles across traffic coming in the opposite direction it was incumbent upon this plaintiff driver to exercise a very high degree of care to give proper and seasonable notice to those whose paths she was about to cross, and to proceed slowly with her car under such control that it could be stopped if occasion demanded.’ In answer to the plaintiff's exception to the charge the court said: ‘You will find that language on 109 Conn. 606 .’

We do not recognize a classification of standards of care into slight, ordinary, and gross, or the like, except in certain definite relationships; Dickerson v. Connecticut Co., 98 Conn. 87, 89, 118 A. 518; Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855; but ‘due care may in any given case mean great care.’ Geoghegan v. G. Fox & Co., 104 Conn. 129, 134, 132 A. 408, 409. The standard of care remains the same-that which a reasonably prudent person would exercise under the same circumstances-but the amount or degree of care is dependent on the surrounding circumstances, and so it is ordinarily for the jury to say how much care should be used in a given situation. Heimer v. Salisbury, 108 Conn. 180, 183, 142 A. 749. The trial court charged in accord with these familiar rules in the early part of its charge and in a passage following the instruction complained of. In the quoted instruction, however, it told the jury in effect that under the circumstances of the case the plaintiff was obligated as matter of law to exercise a very high degree of care. In view of the conflicting claims of proof, this was error. The vice is that the court assumed a state of facts which required that degree of care, whereas it was for the jury to find what facts existed and then to apply the proper standard.

The instruction was taken from...