Gilmartin v. D. & N. Transp. Co.

• Decision Date: 01 July 1937
• Citation: 193 A. 726,123 Conn. 127
• Parties: GILMARTIN v. D. & N. TRANSP. CO. et al. EAGAN v. SAME.
• Court: Connecticut Supreme Court

193 A. 726

123 Conn. 127

GILMARTIN v. D. & N. TRANSP. CO. et al.

EAGAN v. SAME.

Supreme Court of Errors of Connecticut.

July 1, 1937

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

Actions by Joseph F. Gilmartin and by Nellie M. Eagan, respectively against the D. & N. Transportation Company, William Corey and Mary A. Malloy to recover damages for personal injuries alleged to have been caused by the negligence of defendants transportation company and Corey and reckless misconduct of defendant Malloy. From judgments on verdicts against the former defendants after trial of the actions together to a jury, such defendants appeal, and from a judgment on a verdict for defendant Malloy, plaintiffs appeal.

No error on plaintiff's appeals; error on appeals of defendant transportation company and Corey, and new trials ordered as to such defendants.

An instruction, in action for injuries to gratuitous passengers in automobile driven by defendant, who admitted having drunk two glasses of beer during evening before collision with truck, that, if jury found that she was under influence of intoxicating liquor at time of collision, they might consider effect of such fact on general question of collision and negligence of parties involved, was sufficient, where complaint contained no direct or indirect allegation of driving while intoxicated.

Jacob Schwolsky and John W. Joy, both of Hartford, for appellants (plaintiffs).

Philip R. Shiff, of New Haven, for appellants (named defendant et al.)

Joseph F. Berry, of Hartford, for appellee (defendant Mary A. Malloy).

Argued before MALTBIE. C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

HINMAN, Judge.

The plaintiffs were gratuitous passengers in an automobile owned and operated by the defendant Mary A. Malloy, which while traveling northerly on the Berlin Turnpike in Berlin, at about 1:30 a. m. on September 13, 1935, was in collision with a truck of the defendant Transportation Company driven by the defendant William Corey, traveling southerly. The plaintiffs sustained personal injuries for which they seek to recover damages.

The defendants Transportation Company and Corey offered evidence and claimed to have proved that when the latter-the driver of the truck-first saw the Malloy car come over the brow of a hill about three hundred feet away it was on its own (right) side of the road, but soon afterward swerved over onto its left side and proceeded there toward the truck; that thereupon the truck driver slowed down speed and flashed the headlights up and down to attract the attention of the driver of the Malloy car to the fact that it was on the wrong side of the road, but the latter continued on that side until it was within twenty-five of thirty feet of the truck; that it appeared to the truck driver that he could not turn to his right enough to pass the car, owing to a bank on that side of the road, and that the only way he could avoid a head-on collision was to turn to his left, which he did; that the Malloy car then turned to its right, and the left front of it collided with the right front of the truck, the impact occurring to the west (the Malloy car's left) of the center of the highway. The defendant Malloy claimed that her car was on her right side of the road.

In the charge the trial court, referring to these claims of proof, instructed the jury as follows: " They [the Transportation Company and Corey] claim that, because of the manner of approach of the Malloy car, the only reasonably apparent way to avoid the collision was to turn to the left, which they did. Now, the so-called rule of the road statute provides that where vehicles approach one another from opposite directions upon a public highway ‘ the operator of each car shall reduce its speed, when reasonable care shall require, and seasonably turn to the right so as to give half of the traveled portion of the highway, if practicable, and a fair and equal opportunity to the person so met to pass.’ This statute requires each operator to seasonably turn to the right, which means to turn in reasonable time to avoid collision. There is no law, for instance, against driving in the center of the road except in certain specified places, but when other vehicles approach them the driver has to get on his own side or own half of the traveled portion of the road, exclusive of the shoulders, in reasonable time; that is, as the ordinary prudent person would in like circumstances. The claim of the defendants, the Transportation Company and their driver, is that Miss Malloy failed to do this, but approached them on their side of the road and did not seasonably turn and that in an attempt to avoid collision they, at the last moment, turned to the left, but, in spite of it, collided. *** Assuming it is true, for the purpose of showing you the application of the law, while one confronted with a sudden emergency not of his own creation is not necessarily negligent in not doing what he might reasonably have done after due deliberation, and his conduct is tested by that of the ordinary prudent man confronted by such an emergency, yet he may not violate a statute in so doing without being guilty of negligence. So in the instant case, so with these defendants, if their operator turned to the left of the center of the highway, they were negligent" and, the charge continued such violation of the statutory rule of the road would render them liable if it " was a substantial factor in causing the collision."

This charge is assigned as error by the appellants Transportation Company and Corey. It appears from the memorandum of decision that the rule applied thereby was regarded as largely determinative of these defendants' motion to set aside the verdicts, denial of which is also assigned as error. Its correctness is decisive of their appeal.

The situation presented by these defendants' claims of proof resembles that involved in Dole v. Lublin, 112 Conn. 603, 153 A. 856, except that there contributory negligence of the plaintiff was in question instead of, as here, negligence of defendants. It was held that the jury could reasonably have found that the plaintiff's car was traveling on its extreme right of the highway when suddenly, directly in its path and about thirty feet away, the driver perceived the headlights of the defendant's car, theretofore invisible on account of a dense fog. " The plaintiff's driver was clearly faced with a sudden emergency caused solely by the defendant's driver." A fence and ditch at plaintiff's right rendered it impracticable to turn in that direction, and he therefore turned sharply to his left in an attempt to avert a collision. Almost at the same instant the defendant's car was turned to its right and, " thus approaching each other obliquely," the cars collided on the plaintiff's left side of the highway. The turning to the left by the plaintiff violated the same statutory rule as would the defendant's driver, here, in so doing. In that case it was contended on behalf of the defendant that, notwithstanding the intervention of emergency, such violation constituted negligence. 390 Supreme Court Records & Briefs, p. 511. We held, however (112 Conn. 603, at page 606, 153 A. 856) citing Hammer v. Connecticut Co., 94 Conn. 127, 108 A. 534, that the jury were justified in holding the plaintiff's driver free from negligence. In Hammer v. Connecticut Co., supra, the plaintiff claimed to have proved that while driving on his right side of the highway he was confronted by imminence of a head-on collision with another car, running in the opposite direction on the same side, and that he turned suddenly to the left to avoid a collision. It was held (94 Conn. 127, at page 130, 108 A. 534) that if the jury so found they might reasonably find the plaintiff free from negligence and that a charge in substance that if the plaintiff turned to the left, violating a rule of the road (the same one involved in the present case, then in section 1568 of the General Statutes, 1918), he was guilty of negligence, was erroneous.

The trial court in the memorandum of decision recognizes that the effect of these decisions was, as above indicated, that turning to the left of the center line in an emergency...