Irwin v. Judge

• Decision Date: 06 January 1909
• Court: Connecticut Supreme Court
• Parties: IRWIN v. JUDGE.

71 A. 572

81 Conn. 492

IRWIN

v. JUDGE.

Supreme Court of Errors of Connecticut.

Jan. 6, 1909.

Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.

Personal injury action by Annie Irwin against Franklin Judge. There was verdict and judgment for plaintiff for $500, and a motion to set aside the verdict was denied, and defendant appeals. No error.

J. Belden Hurlbutt, for appellant.

James T. Hubbell, for appellee.

HALL, J. The plaintiff, who at the time of the accident by which she was injured was 16 years of age, brings this action by her next friend, alleging in her complaint that, on the 1st day of August, 1906, at about 6 o'clock in the afternoon, when she was going southerly down North Main street on the right-hand side of the street, in the city of South Norwalk, riding a bicycle, at a moderate rate of speed, she was, at a described point, run into by an auto car going northerly on the left-hand side of the road, and driven by the defendant at a high rate of speed, and injured, and that the accident was caused by the defendant's negligence in being on the wrong side of the street, and running his car at so high a rate of speed that it was beyond his control. Main street, in the city of South Norwalk, runs north and south. Washington street, running east and west, crosses it at a central point of the travel and traffic of the city. On the map, made a part of the record, the portions of Main street north and south of the Washington street crossing are designated, respectively, "North" and "South" Main street, and those of Washington street east and west of said crossing "East" and "West" Washington street. There are trolley tracks near the center lines of each of said streets. On the 1st of August, 1906, the defendant, in his automobile, was riding easterly on West Washington street, intending to turn up North Main street. His machine was operated by one Caldwell, who commenced working as a chauffeur about two weeks before that time. The plaintiff was riding a bicycle on North Main street, going southerly, and intending to turn down East Washington street. The collision occurred north of the Washington street crossing. There was a conflict of testimony as to the precise point where the collision occurred, and also regarding the exact direction in which the plaintiff was going, and the speed of the automobile and the direction in which it was going. The plaintiff claimed that as going southerly on North Main street, she approached the Washington street crossing, she was riding her wheel on the west side of the Street, and just west of the trolley tracks on North Main street, and that the automobile coming from West Washington street turned northerly, and came rapidly up the west side of North Main street, and ran into her wheel, and threw her off, as she was about to cross the trolley track to go over to East Washington street. The defendant claimed that when, going easterly along West Washington street, he reached the Main street crossing, he at a slow rate of speed crossed to the east side of North Main street, and when his automobile had stopped, or nearly stopped, the plaintiff, who had crossed, or was crossing, to the east side of North Main street, ran into the automobile. In his appeal to this court the defendant complains: (1) That the damages awarded are excessive; (2) that the trial court erred in denying defendant's motion to set aside the verdict as against the evidence; and (3) that it erred in refusing certain requests to charge, and in giving certain instructions to the jury. The claim that the damages awarded are excessive is not pursued by the defendant. Regarding the second point, it would be unprofitable to repeat here the evidence which we deem sufficient to support the verdict rendered. It is enough to say of this claim, that an examination of the evidence satisfies us that the trial judge correctly stated, in his memorandum of decision, that "upon the conflicting evidence presented the jury might have found in favor of either party." Those of the alleged errors in refusing to charge as requested which require notice are sufficiently considered in discussing the exceptions to the charge itself.

First, regarding the charge, error is predicated upon the statement of the court to the jury that the defendant was "liable for the management of his car by Caldwell upon the undisputed relations which existed between them." This statement was clearly warranted. Although it appeared that Caldwell was in the employ and pay of another person than the defendant, it was undisputed that at the time of the accident he was, and for some weeks before had been, intrusted by the defendant with the running and management of his car, as chauffeurs ordinarily are by owners of automobiles. He seems to have differed from the ordinary chauffeur only in his inexperience. The defendant testified that Caldwell was taking care of his (the defendant's) car and running it, and that he (the defendant) was teaching him how to run it. Caldwell's testimony was to the same effect. The defendant further testified on cross-examination that he did not claim that he was not responsible for what occurred because he was not running the car. The proper way to have raised the question of whether under the rule of pleading (section 144, p. 244, Practice Book 1908), the plaintiff should have alleged that the automobile was driven by the defendant by his agent Caldwell would have been to object to proof that it was so driven.

Among the other statements made in the charge to which the defendant takes exception in his reasons of appeal are the following:

(2) "The statute law of the state in force at the time of this accident made it the duty of the defendant, when he met the plaintiff, to slacken his speed, if necessary, and to seasonably turn to the right so as to give her one-half of the traveled path, if practicable, and a fair and equal opportunity to pass."

(3) "* * * If you find that he (the defendant) was on the left-hand side of the street when the collision occurred, he failed to perform a duty which he owed, by positive statute, to the plaintiff, and you should find him negligent in that one of the respects alleged in the complaint, unless you find that he was coming into a side street from an intersecting street, and had not had time to get over to the right-hand side of the street. * * *"

(4) "When a collision occurs, the fact that a person is on the wrong side of the road is prima facie evidence of negligence."

(5) "But if you find that he (the defendant) was driving at a high rate of speed at that time, then you must find that such act in itself was unlawful, and was therefore a negligent act."

(0) "No matter how great the rate of speed allowed by law, the operator remains bound to anticipate that he may meet persons or vehicles on a public street, and he must keep his machine under such control as will enable him to avoid a collision."

The statute law thus referred to in the charge, and in force at the time...