Johnson v. Shattuck

• Decision Date: 07 December 1938
• Citation: 125 Conn. 60,3 A.2d 229
• Court: Connecticut Supreme Court
• Parties: JOHNSON v. SHATTUCK.

3 A.2d 229

125 Conn. 60

JOHNSON v. SHATTUCK.

Supreme Court of Errors of Connecticut.

December 7, 1938

Appeal from Superior Court, Hartford County; Patrick B O'Sullivan, Judge.

Action by Violet L. Johnson against Edwin H. Shattuck for a personal injury alleged to have been caused by the negligence of the defendant, brought to the superior court and tried to the court. From a judgment for the plaintiff, the defendant appeals.

No error.

In action by 10-year-old girl for injuries sustained when struck by defendant's automobile while riding on seat of bicycle behind boy who was standing up pedaling, tried to the court whether plaintiff was guilty of contributory negligence was for trial court.

Joseph B. Morse, of New Haven (Philip Pond and Daniel D. Morgan, both of New Haven, on the brief), for appellant.

Milton Nahum, of Hartford (Julius Apter, of Hartford, on the brief) for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

BROWN Judge.

The only issues pursued concern the conclusions of the trial court that the defendant was negligent, that this was a proximate cause of the plaintiff's injury, and that the plaintiff was free from contributory negligence. The relevant facts found by the court are in substance these. Windsor Street in Hartford has a concrete surface thirty-four and one-half feet in width and at the place where this accident happened is level, straight and heavily traveled. In broad daylight on June 14, 1937, the defendant was operating an automobile northerly along the dry roadway of this street, following a lumber truck which was one hundred feet ahead, and followed by another truck, which was twenty-five feet behind. All of the three vehicles were traveling at about the same speed of twenty miles per hour, with their right sides about ten and three-quarters feet from the east edge of the street, and were overtaking a bicycle also proceeding northerly about six and one-half feet from this edge. William Cupe, a twelve year old boy, was pedaling the bicycle standing up, at a much slower speed than that of the three motor vehicles, and the plaintiff, a ten year old girl, sat on the seat behind him with her arms around his waist, but the positions of the children did not interfere with the boy's ability to operate the bicycle. They had been riding in this manner for a considerable distance.

When at least one hundred feet south of it, the defendant first saw the bicycle as the lumber truck came abreast of it, and observed there were young children on it. A continuation of the courses they were then following would have brought the defendant's automobile and the bicycle within less than four feet of each other as they came side by side. From his first sight of the bicycle until the collision the defendant did not change his course, sound any horn, give any warning of his approach, or slacken his speed. When the lumber truck had passed the bicycle and the defendant's automobile was about ten feet from the rear of it, Cupe started to turn to his left. He had not told the plaintiff he was going to nor did she know he was going to do so. He did not know defendant's automobile was approaching nor did he look to see if there was any traffic before he started to turn. When he had turned slightly and part of his front wheel was more than ten and a quarter feet from the east edge of the street, the right front corner of the defendant's bumper struck it, throwing the plaintiff to the pavement, causing her serious injuries. There was no traffic other than that above stated. When the bicycle started to turn, the defendant's automobile was so close that it was impossible for him to stop or turn it and avoid the accident.

These facts are undisputed, since the appeal does not attack the finding. No conclusion of the trial court can be disturbed by this court, therefore, unless it appears either that it involves the application of some erroneous rule of law material to the case, or that the conclusion has been unreasonably drawn from the facts found. Davis v. Margolis, 107 Conn. 417, 422, 140 A. 823; Skovronski v. Genovese, 124 Conn. 482, 484, 200 A 575. The essence of the defendant's sole argument attacking the conclusion that the defendant's failure ‘ to give a warning of his approach towards a bicycle on which were two children of tender age was negligent, in view of all the circumstances,’ is that inasmuch as § 1644 of the General Statutes required the boy riding the bicycle to signal before changing his direction, the defendant had a right to assume that before turning he would do this (Rozycki v. Yantic Grain & Products Co., 99 Conn. 711, 716, 122 A. 717, 37 A.L.R. 582), and since it does not appear that such signal was given, the court was not warranted in concluding that the defendant failed to act as a reasonably prudent man would have acted under the circumstances and was negligent. The full and correct statement of the rule of law upon which the defendant's contention is predicated, however, is ‘ that the defendant was entitled to assume that the driver of the other vehicle would observe the provisions of the statute until he knew or, in the exercise of reasonable case should have known, that the assumption had become unwarranted.’ Hubbs v. Edmond, 121 Conn. 506, 509, 186 A. 496, 497; ...