Germon v. Noe

• Decision Date: 16 July 1942
• Citation: 27 A.2d 378
• Court: Connecticut Supreme Court
• Parties: GERMON v. NOE.

27 A.2d 378

GERMON

v. NOE.

Supreme Court of Errors of Connecticut.

July 16, 1942.

DICKENSON, J., dissenting.

Appeal from Superior Court, New Haven County; O'Sullivan, Judge.

Action by Theodore Germon against Roy N. Noe to recover damages for injuries to person and property alleged to have been caused by the negligence of the defendant, brought to the Superior Court where the defendant filed a counterclaim and the issues were tried to the jury. Verdict and judgment for the defendant on the complaint and for the plaintiff on the counterclaim, and appeal by plaintiff.

Error and new trial ordered.

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

A. Robert Levett, of New Haven, for appellant.

Morris Tyler, of New Haven, for appellee.

ELLS, Judge.

A small truck driven by the plaintiff was in collision with a Ford sedan operated by the defendant, and this litigation ensued. Apparently the jury concluded that both drivers were at fault. The plaintiff appealed, alleging error in the charge.

The first question presented grows out of the refusal of the trial judge to submit to the jury the issue of the right of the plaintiff to recover under the doctrine of supervening negligence. The plaintiff had claimed this right in his complaint and in requests to charge. He offered evidence and claimed to have proved that he was driving east toward North Branford on Route 80, a concrete highway consisting of two panels, each ten feet wide, with a four-foot macadam shoulder on the south and a three-foot concrete shoulder ending at a six-inch concrete curb on the north. An earthen bank rises sharply from the curb. As he approached the center of North Branford he was following closely a Buick car at a speed of fifteen to eighteen miles an hour. The Buick suddenly came almost to a complete stop, preparatory to turning to the right in an intersection. The plaintiff's car was in the middle of the south panel, and he turned it to the left to go upon the northerly panel for the purpose of passing the Buick. As he started to turn he saw the defendant's car coming westerly at a speed of about fifty miles an hour; at that instant it was about three hundred and sixty feet away and was in the center of the highway. Thinking he could pass the Buick before the defendant's car reached him, he continued his turn to the left and started to pass, but realizing that he did not have enough speed to do so he turned sharply to his left across the northerly panel to the extreme northerly edge of the shoulder and came to a stop at the curb, as he could not go further north because of the earthen bank. When stopped his car was at an angle with the curb and extended well out in the northerly panel. When the plaintiff's car came to a stop, the defendant's automobile, which had been approaching without a change of course or speed, was sixty feet away, at which point the defendant applied the brakes hard and with a loud squealing of brakes and noise of skidding crashed into the forward part of the plaintiff's car, the point of collision being six feet south of the northerly curb. From about one thousand feet east of the site of the collision the view of the highway was unobstructed, and the defendant had seen the two cars coming easterly on the south panel and saw the plaintiff's car when it swung across the northerly panel. At the time the plaintiff's car had reached the curb the Buick had passed into the intersecting highway, and the south panel was clear. The defendant did not have his car under proper control, his speed was excessive and he did not reduce it, although he was traveling through the center of North Branford and was approaching an intersection.

The defendant claims that all of the four elements necessary to the application of the doctrine of the last clear chance are not present in the record. The jury could reasonably have found that the plaintiff had come into a position of peril due to his own negligence and that the...