Lane v. Undeman.

• Decision Date: 15 June 1944
• Citation: 38 A.2d 178,131 Conn. 112
• Court: Connecticut Supreme Court
• Parties: LANE v. UNDEMAN.

131 Conn. 112

38 A.2d 178

LANE

v.UNDEMAN.

Supreme Court of Errors of Connecticut.

June 15, 1944.

Appeal from Superior Court, Hartford County; Wynne, Judge.

Action by Janice Lane against Eugene R. Ludeman, Jr., for personal injuries allegedly caused by negligent operation of an automobile by defendant. Verdict and judgment for defendant, and plaintiff appeals.

No error.

Warren Maxwell, of Hartford (Kimberly Cheney and Frederick H. Waterhouse, both of Hartford, on the brief), for appellant.

Cyril Coleman and Eugene A. Massey, both of Hartford, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

The three-year-old plaintiff was struck by the defendant's automobile when she ran in front of it. In this action for damages, in which it was alleged that the plaintiff's personal injuries were due to the negligence of the defendant, the jury found for the latter. The plaintiff has appealed from the judgment, assigning errors in the court's charge to the jury. The sole issue presented for determination is whether the court's charge concerning the defendant's failure to give any warning of his approach was erroneous.

Hill Street in East Hartford, where the accident happened, is a straight, level, hardsurfaced highway sixteen feet wide with a two-foot shoulder on each side and extends in an easterly and westerly direction. It has no curbs or sidewalks, the lawns on either side abutting the outer edge of the shoulder. Along its north side a row of houses sets back fifty-two feet from the north edge of the shoulder. There are no trees, shrubs, or other fixed obstacles to vision on this side. At about half past three in the afternoon of September 13, 1940, just prior to the accident, a Cadillac sedan headed east was parked with its left wheels at the north edge of the north shoulder opposite the walk leading into the Gallup residence. As a school bus slowed down for its stop at a point about three hundred and forty-three feet east of the Gallup lawn, the defendant driving his Ford sedan overtook and passed it on its left. There was no other traffic. When the front of the defendant's automobile reached a point just west of the rear of the parked Cadillac car, it collided with the plaintiff as she ran from behind the car toward the south side of the street, and inflicted serious injuries. The defendant gave no warning of his approach and did not discover the presence of the plaintiff on the highway until after she was struck. These facts are undisputed.

The plaintiff's claims of proof in the finding, which is not subject to correction, set forth these further material facts: When the defendant's car was seven or eight hundred feet easterly from the Gallup house, the plaintiff and two other little girls of her own age were playing on the Gallup lawn and were visible to the defendant. His car was proceeding at thirty-five miles an hour as it overtook and passed the bus. He continued on at unabated speed and, without sounding signal or warning of any kind, passed the parked car as close to its right side as he could without hitting it. The plaintiff ran from near the center of the lawn past the rear of the parked car to the point where she was struck. The defendant daily drove along this street at about half past three in the afternoon on his way to work and knew that small children lived in the houses there.

The defendant's claims of proof in substance were: The plaintiff, having come across from her home on the south side of the street, began to play with the other two little girls in front of the Gallup house. They played back and forth from the lawn to the parked car under the observation of Mrs. Gallup, who sat looking out through her front screen door. As the bus decreased its speed for the stop above referred to, the defendant, who was following it, turned to the left and proceeded to pass it at a speed of about twenty-five miles per hour. Up to this time the defendant did not and could not see the children because his view was shut off by the bus. When he so proceeded to pass he did have an unobstructed view ahead, but by that time the three children had seated themselves on the left-hand running board of the parked car where they were not and could not be seen by the defendant. Thereupon, the plaintiff's mother, looking across the street from her front door and being unable to see the plaintiff, called ‘Janice,’ and Mrs. Gallup called back that the children were all right. At the same time, the plaintiff jumped up from the westerly end of the running board and ran around the rear end of the parked car into the street. When she jumped up, the defendant's car was approximately one length east of the parked car. As she ran out from behind it she was struck instantaneously. The defendant did not see her at any time before the impact. She was so small and his car was so close to her when she ran out that the first glimpse he had of her was her hair blowing over the top of the radiator as she was carried along by the car before he brought it to a stop. The defendant reasonably did not anticipate the presence of the plaintiff at or near the parked car. He was confronted with a sudden emergency not of his own making, and her injuries were due entirely to an unavoidable accident without fault on his part.

The claim of the plaintiff, that the court's instructions concerning the defendant's failure to give her any warning of his approach were erroneous, is twofold, first that the court should have charged that this constituted negligence per se, and second that it failed to state the law applicable to this conduct of the defendant. In support of the former contention the plaintiff relies upon this court's decision in Demonde v. Targett, 97 Conn. 59, 115...