Hizam v. Blackman

• Citation: 131 A. 415,103 Conn. 547
• Court: Connecticut Supreme Court
• Decision Date: 23 December 1925
• Parties: HIZAM v. BLACKMAN.

131 A. 415

103 Conn. 547

HIZAM v. BLACKMAN.

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Superior Court, Fairfield County; Newell Jennings Judge.

Personal injury action by Stephen Hizam against Chester E. Blackman. Verdict and judgment for plaintiff for $4,000, and defendant appeals. Error, and new trial ordered.

The evidence presented the following undisputed facts. On the evening of December 10, 1924, the plaintiff was walking on Ogden street toward his home in the easterly part of Bridgeport. He arrived about 5:50 p. m. at the northwesterly corner of Ogden street and Noble avenue. Ogden street runs east and west, and Noble avenue, north and south.

The plaintiff lived easterly of Noble avenue, and his purpose was to cross Noble avenue. He walked a short distance north on Noble avenue; the distance being about 20 feet. He then started to cross Noble avenue diagonally; that is, not on the crosswalk, but notheasterly across the vehicle roadway. He walked from the westerly curb northeasterly toward a point on the easterly curb about midway between Ogden street and Stillman street, the next street north of Ogden street. This block is 325 feet long. Noble avenue is 35 feet wide between curbs and there are two sets of trolley tracks on it. The most easterly rail of the north-bound track is 10 1/2 feet west of the easterly curb of Noble avenue. The plaintiff neither saw nor heard any approaching vehicles nor saw the lights on any vehicles, while crossing Noble avenue. While thus crossing Noble avenue, and at a point easterly of the easterly rail of the north-bound track, the plaintiff was struck by the automobile of the defendant which was traveling northerly on the easterly side of Noble avenue. The plaintiff was severely injured. The evening was clear, but dark. The plaintiff was 68 years of age and quite deaf. There were no vehicles on Noble avenue at the time in question which in any way interfered with the movements of either party or obstructed their view. There was a lighted arc light over the roadway at the intersection of Noble avenue and Ogden street, and also at the intersection of Stillman street and Noble avenue. Noble avenue, in that vicinity, extends from the place of the collision for several hundred feet in a straight line, and is well surfaced and without grade.

John T. Dwyer, of South Norwalk, and Stanley T. Jennings, of Stamford, for appellant.

Carl Foster, of Bridgeport, for appellee.

CURTIS, J. (after stating the facts as above).

The complaint contains These allegations, which were not disputed:

" (1) On the 10th day of December, 1924, at about the hour of 5:50 p. m., the plaintiff was walking across Noble avenue in said Bridgeport from the west side to the east side of said Noble avenue at a point nearly opposite the house known as 776 Noble avenue just north of the intersection of Ogden street with Noble avenue. (2) At said time and place the defendant was operating an automobile in a northerly direction on said Noble avenue."

These allegations reasonably interpreted mean that, during the whole time that the plaintiff was crossing Noble avenue, the defendant was operating his automobile in a northerly direction on that avenue. We are also satisfied that, under the evidence, the jury could not have reasonably found otherwise than that during that time the lights of the defendant's automobile were lighted.

In his appeal, the defendant presents two distinct claims for our consideration: (1) That, under the pleadings and the evidence presented, the verdict was contrary to the evidence, and the court erred in not granting his motion to set aside the verdict; (2) that the court in its charge to the jury and in its refusal to charge as requested erred.

The defendant claims that the plaintiff was required to prove, to entitle him to a verdict, both that the defendant was guilty of some negligence alleged, which was a proximate cause of the collision and injury, and, further that he himself was not guilty of any negligence which was a proximate cause of the collision.

The jury could reasonably have found that the defendant was guilty of some negligence alleged which was a proximate cause of the collision and the injury.

The defendant claims that, under the complaint and the evidence, the jury must reasonably have found that the lights on the defendant's automobile were visible to the plaintiff, while he was walking across Noble avenue, if he had used due care in the use of his eyes. The defendant claims that it is not sufficient to justify a verdict for the plaintiff for the jury to have found that the plaintiff looked for the lights of an approaching automobile, but did not see them, and hence exercised due care.

The law is firmly established that it was the plaintiff's duty to exercise ordinary care both to avoid dangers...