Kruck v. Conn. Co.

• Decision Date: 15 June 1911
• Citation: 84 Conn. 401,80 A. 162
• Court: Connecticut Supreme Court
• Parties: KRUCK v. CONNECTICUT CO.

80 A. 162

84 Conn. 401

KRUCK

v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

June 15, 1911.

Appeal from Superior Court, New London County; Joel H. Reed, Judge.

Action by Marie Kruck, administratrix, against the Connecticut Company for personal injuries resulting in the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. From an order refusing to set aside a judgment of nonsuit, plaintiff appeals. Affirmed.

The plaintiff offered evidence of the following facts: The plaintiff's intestate was killed by being hit in the head by the front end of a passing trolley car which he was expecting to board after dark. Boswell avenue, upon which the accident happened, has a double line of trolley rails laid upon its westerly side. The rail farthest east lies in about the middle of the avenue, and is 18.7 feet from the east gutter. A few feet northerly of the point of accident are a pair of poles marked to indicate a place where cars will stop when desired. Ninety-eight feet northerly of the poles is an incandescent street light. On the east side of the avenue directly opposite the point of accident and standing near to the street is a hotel. To the south the tracks extend in a straight course for a distance of about 400 feet, and there is no obstruction to the view.

The car which hit the intestate was coming from the south on the easterly lines of tracks. It was equipped with an electric searchlight carried in front. The radiating rays of this light, which was and remained in operation, would light up the full width of the avenue at the place of accident from the point where the car was when signaled, as hereinafter stated, and continuously thereafter until the car was close to that place. They are so powerful as to be dazzling and blinding to the eye when looked at.

Only one witness of the occurrence was produced. He testified that he and the intestate were together in the barroom in the front of the hotel, when the latter, who was familiar with the surroundings, heard the approach of the car, which he desired to take; that the intestate started for the street; that he arrived there, and being, to use the language of the witness, out in the middle of the street, he held up his hand as a signal for the car, which was then about 300 or 400 feet away, to stop; that it continued going at about 15 or 20 miles an hour, hit the intestate, and came to a stop some 150 feet farther on. When the witness was further asked to tell about where in the street the intestate was when he held up his hand, and how near to the rails he was, he said that he could not tell. He was not inquired of as to the intestate's subsequent movements or conduct before he was struck, and he gave no information upon that subject. The intestate's position in the street was only a short distance south of the marked poles.

Other evidence bearing upon the question of the defendant's original negligence need not be recited.

Donald G. Perkins and Allyn Brown, for appellant.

Michael Kenealy, for appellee.

PRENTICE, J. (after stating the facts as above). The plaintiff assumed the burden of establishing by a preponderance of evidence the defendant's negligence and her intestate's freedom from contributory negligence. If she failed to present, in support of each of these two propositions, substantial evidence which should be weighed and considered by the jury, and upon which it reasonably might have reached affirmative conclusions, the nonsuit was properly granted. Booth v. Hart, 43 Conn. 480, 484; Foskett & Bishop v. Swayne, 70 Conn. 74, 75, 76, 38 Atl. 893.

The evidence presented must have been such as to furnish a more substantial basis for a conclusion than a mere guess, surmise, or conjecture. Mesite v. Connecticut Co., 82 Conn. 403, 405, 74 Atl. 684; Fay v. Hartford & Springfield Street Ry. Co., 81 Conn. 330, 335, 71 Atl. 364. The plaintiff was bound to remove the issues from the realm of speculation, and to establish facts affording a logical basis for the inferences which she claimed. Morse v. Consolidated Ry. Co., 81 Conn....