Guilfoile v. Smith

• Decision Date: 21 February 1922
• Citation: 97 Conn. 271,116 A. 237
• Court: Connecticut Supreme Court
• Parties: GUILFOILE v. SMITH.

116 A. 237

97 Conn. 271

GUILFOILE v. SMITH.

Supreme Court of Errors of Connecticut.

February 21, 1922

Appeal from Superior Court, New Haven County; John P. Kellogg Judge.

Action by Francis P. Guilfoile, as administrator, etc., against Fred Smith, alias Fred Smelefsky, to recover damages for personal injuries resulting in the death of plaintiff's intestate alleged to have been caused by the negligence of defendant. Judgment for defendant, and plaintiff appeals. No error.

Where witness described an occurrence in two ways inconsistent with each other, his evidence at a former trial can be used to impeach him.

Frank P. McEvoy, of Waterbury, for appellant.

Henry J. Marks and Reinhart L. Gideon, both of Hartford, for appellee.

CURTIS, J.

This case was before us on an appeal from denial of a motion to set aside a nonsuit. Guilfoile v. Smith, 95 Conn 442, 111 A. 593.

The plaintiff's intestate and six other young men, in the early evening of March 2, 1919, were riding in the Ford automobile of the defendant, a two-seated five-passenger car in a southerly direction on Main street in East Hartford. The defendant was carrying the party either gratuitously or as a private carrier for hire. There was a permanent iron water tank in the roadway on Main street, 3 1/2 feet in diameter and 4 1/2 feet high. The defendant, driving southerly, drove his car so that it came into contact with the tank, and the plaintiff's intestate fell from the car and received injuries which resulted in his death.

We are satisfied that under the evidence, all of which is in the record, it could not reasonably have been found by the jury that the defendant was free from negligence which was a proximate cause of the collision with the tank and the injuries to the plaintiff's intestate. This leaves for determination the following questions: (1) Could the jury have reasonably found that the intestate was guilty of contributory negligence? (2) Did the court err in charging the jury in any matter relating to the contributory negligence of the intestate? (3) Did the court err in the admission of evidence as claimed in the seventeenth assignment of error?

It is not disputed that three persons were seated on the rear seat of the car with three others sitting on their knees. The jury could reasonably have found that the deceased sat on the rear seat on the left side of the car on the knee of one of the party, with his right leg in the car and his left leg out of the car; that while the deceased was in such situation, the defendant drove his car slowly so near the water tank that the rear fender on the left side of the car came into slight contact with the tank, and without sufficient force to damage the fender; that the deceased fell from the car upon such contact, and received such injuries to his abdomen as caused his death.

The jury could reasonably have found that the contact of the car with the tank was not of such violence as to throw the deceased from the car, and that his fall was caused by his left foot and leg extending from the car so far as to cause the foot and leg to be caught between the car and the tank, thereby pulling the deceased from the car as the car passed forward. The jury therefore could have reasonably found that the deceased was negligent in riding with his left leg and foot so projecting from the car, and that such negligence was the proximate cause of the fall and injury.

We will now consider the claimed errors in the charge relating to contributory negligence. The error claimed in the sixth reason of appeal is untenable. The court charged as follows:

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