Hope v. Valente

• Decision Date: 21 April 1911
• Citation: 84 Conn. 248,79 A. 583
• Court: Connecticut Supreme Court
• Parties: HOPE v. VALENTE.

79 A. 583

84 Conn. 248

HOPE

v. VALENTE.

Supreme Court of Errors of Connecticut.

April 21, 1911.

Appeal from Superior Court, New Haven County; William L. Bennett, Judge.

Action by Thomas H. Hope against Pasquale Valente, 1st, for damages for personal injuries. There was a judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Benjamin Slade, for appellant.

George E. Beers and Frederick C. Russell, for appellee.

WHEELER, J. The plaintiff's case tended to prove that the defendant left his horse hitched to a wagon on one side of Orange street, New Haven, in part in the gutter, with another horse tied by a halter to the rear of the wagon, unattended, unguarded and unharnessed. The plaintiff was walking on the sidewalk of Orange street when he came to a part of the walk blocked with sand, broken brick, and lumber, making the passage across the walk rough, and he thereupon in the exercise of due care left the walk, passed in the rear of the horse tied to the wagon and ten feet from him, and while thus walking parallel to the horse it swerved to the left, and kicked and injured him. The horse was a vicious and kicking horse. The trial court construed the complaint, and we think properly so, as charging negligence in two ways: (a) In leaving the horse thus unguarded and in a location where it was likely to cause injury; and (b) in leaving a horse which had the vice of kicking under such conditions and in such a location.

The charge is complained of in several particulars:

1. The court charged the jury that full and satisfactory proof of a single act of viciousness was sufficient to warrant a jury in finding a verdict for the plaintiff, though the act must be such as to display the malevolent character of the animal. No objection is made that viciousness may not be found from a single act of the character described by the court. Our court so held in Arnold v. Norton, 25 Conn. 92, 95; Id. Note, Emmons v. Stevane, 24 L. R. A. (N. S.) 459. Nor is the complaint that the court omits in this connection to tell the jury that it must also be shown to establish negligence of this nature that the defendant had notice, actual or constructive, of the vicious act The court so states both before and after its statement which is the subject of criticism.

The ground of complaint is that the court left it to the jury to predicate its verdict upon the single act of viciousness known to the defendant, irrespective of whether the plaintiff's negligence materially contributed to his injuries. If the court had failed in its charge to make it clear that the plaintiff's own negligence would bar his recovery, this criticism would be a just one. The court was at this point in the charge' treating of one of the elements requisite to support a recovery, viz., one ground of negligence. In a subsequent part of the charge, it treated in an entirely adequate manner the subject of the plaintiff's contributory negligence. And at the beginning and towards the close of the charge were accurately summarized the elements of proof required to support a recovery.

2. The tenth assignment of error is a mere repetition by the court of a request to charge. The eleventh assignment of error relates to what the court says in regard to this request. It is not pursued in argument or brief and the court's statement that, if the owner of a horse more likely to kick than another horse puts him in a place where it is liable to injure others, he is bound to keep in mind his knowledge of the horse, and take such care as the ordinarily prudent person would take under such circumstances, was a reasonably accurate statement of the law for the purposes of the case, and expressed in terms within the comprehension of the jury.

3. The court charged that the foot passenger had the legal right to travel on foot upon the traveled way whether the sidewalk was at that time passable or impassable. But whether the plaintiff in leaving the sidewalk for the traveled way acted with reasonable care at that time depends upon whether his conduct under the circumstances conformed to that of an ordinarily prudent person under the same circumstances. This is the law. Negligence as matter of law cannot be predicated upon the mere fact that a pedestrian leaves the sidewalk and walks in the roadway. A sleet or snowstorm may compel this course. He may find the sidewalk obstructed or impassable. He may desire to cross the roadway. He may be left in the roadway on alighting from a car or an omnibus. He may be leading a cart or pushing a wagon. He may walk upon the roadway to escape the crowded sidewalk. These and other reasons may take him upon the traveled way. His legal right to be there is undoubted. The situation may be so dangerous that it would be negligence to walk in the roadway. The circumstances would determine that and the negligence of the pedestrian cannot be asserted as matter of law, nor can his presence in the roadway be prima facie evidence of want of care. Coombs v. Purrington, 42 Me. 332, 335; Barker v. Savage, 45 N. Y. 191, 196, 6 Am. Rep. 66; Brooks v. Schwerin, 54 N. Y. 343, 347; Raymond v. Lowell. 6 Cush. (Mass.) 524, 530, 53 Am. Dec. 57; Eaton v. Cripps & Brothers, 94 Iowa, 176, 180, 62 N. W. 687; Note to Borg v. Spokane Toilet Supply Co., 19 L. R. A. (N. S.) 161; Boss v. Litton, 5 Carr & Payne. 407; Elliott, Roads and Streets (Ed. 1890) p. 622; 5 Thomp. Com. on Neg. (Ed. 1905) § 6298.

This disposes of the defendant's contention that he had a right to assume that so long as the sidewalk remained passable the plaintiff would make use of it. and not be in the roadway, where he...