Guarnaccia v. Wiecenski
| Decision Date | 06 April 1943 |
| Citation | 31 A.2d 464,130 Conn. 20 |
| Court | Connecticut Supreme Court |
| Parties | GUARNACCIA v. WIECENSKI et al. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, New London County; Baldwin, Judge.
Action by Louis Guarnaccia against Stephen Wiecenski and others for personal injuries sustained by the plaintiff as a passenger in the defendants' motor vehicle, alleged to have been caused by the defendants' negligence. Verdict and judgment for the plaintiff, and the defendants appeal.
No error.
Arthur T. Keefe, of New London, for appellants.
Julius B. Schatz and Arthur D. Weinstein, both of Hartford (Edward Seltzer, of Hartford, on the brief), for appellee.
Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.
In this action for damages for personal injuries sustained by the plaintiff as passenger in the defendants' motor vehicle, in consequence of their negligence, the plaintiff had a verdict. The defendants have appealed from the court's denial of their motion to set it aside, and also from the judgment. The first question upon the former appeal is whether the plaintiff was contributorily negligent as a matter of law. The jury could reasonably have found these facts: The plaintiff, employed as a shoveler, on the morning of August 12, 1940, was riding, at the direction of his foreman, in the body of a dump truck owned by the defendants which was under hire to a contractor, to a place where it was to be loaded. Back of the cab of the truck on top of the front of the body a board was affixed, the upper edge of which was about three and one-half feet above the floor of the truck. There were neither seats in the body of the truck nor room the plaintiff on the driver's seat, and he was standing, as the driver knew. When the truck started, the plaintiff held onto the front until it got going smoothly. Then, to avoid facing the wind, he turned around and stood leaning with his back against the board. The truck was proceeding westerly along a gravel town road toward its intersection with a paved state highway at a speed of thirty-five to forty miles an hour. About twenty-five or thirty feet east of the edge of the pavement was a stop sign. The driver, just before reaching the stop sign, slackened his speed slightly as though to stop. Instead, upon passing the sign, he first accelerated the speed of the truck and then without giving the plaintiff any warning jammed on the brakes bringing it to a very sudden, unusual and violent stop at the middle of the state highway. This threw the plaintiff against the top of the board and of the cab with such violence that he would have been thrown over it and onto the roadway had not his fellow employee grabbed and held onto him. The defendant driver gave no notice that he was coming to a stop and there was no traffic or other factor which necessitated his making it.
In so far as the question of liability is concerned the trial court properly denied the motion to set aside the verdict, unless the plaintiff was guilty of contributory negligence as matter of law. As there was no evidence to the contrary, it may well be that he was leaning his body against the board at such an angle, and had his feet so placed, that he had braced himself in a manner affording him reasonable security against hazards of the ride which he was bound to anticipate, even though he was not holding on, as the defendants contend he ought to have done. The plaintiff was entitled to assume that the defendant driver would use due care in driving the truck, until the plaintiff knew or in the exercise of reasonable care should have known that the assumption had become unwarranted. Riley v. Connecticut Co., 129 Conn. 554, 557, 29 A.2d 759. Until the sudden application of the brakes by the defendant driver, the plaintiff had ridden immune from difficulty or harm, and, the act of no third party being involved, the facts demonstrate that but for the defendants' negligence in making the sudden stop without warning or reason the plaintiff would not have been injured. They also show that the plaintiff was warranted in assuming up to the very instant of the accident that the defendant driver would continue on with due care and without danger to him. Upon this record it cannot be held that the plaintiff's conduct was so manifestly contrary to that of a reasonably prudent man as to constitute contributory negligence as a matter of law. Marini v. Wynn, 128 Conn. 53, 55, 20 A.2d 400. The difference in the facts sufficiently distinguishes the present case from that of Hinch v. Elliott, 119 Conn. 207, 175 A. 684, urged upon us by the defendants as controlling contrary authority.
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