Lederer v. Connecticut Co.

• Decision Date: 22 December 1920
• Citation: 95 Conn. 520,111 A. 785
• Court: Connecticut Supreme Court
• Parties: LEDERER v. CONNECTICUT CO.

111 A. 785

95 Conn. 520

LEDERER v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

December 22, 1920

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Action by Julius Lederer, administrator, against the Connecticut Company to recover damages for personal injuries to plaintiff's intestate by the alleged negligence of defendant. From a judgment for defendant after verdict in its favor, plaintiff appeals. Error, judgment set aside, and new trial ordered.

The plaintiff offered evidence to prove the following facts: On May 19, 1917, Mrs. Burkle, accompanied by her daughter, whom she held by the hand, and by her son William, aged 5 years and 8 months, who was riding a tricycle just in front of her left her home on Congress avenue, New Haven, and walked east along the north sidewalk a short distance when she turned south, and before descending from the curb to the traveled way she looked to the east and saw a trolley car approaching coming toward her on the north track about 600 feet distant and traveling at a speed of 20 miles an hour.

The double trolley tracks of defendant were in the center of the street. At this point the street was 38 feet 2 inches from curb to curb. The distance from the north curb to the north rail of the north track was 11 feet 8 inches, between rails 4 feet 8 1/2 inches, and between the tracks 5 feet, leaving the space from the south rail of the south track to the south curb of 12 feet and 1 inch.

The neighborhood from Downes street, which was over 500 feet west of the place of accident, was populous and occupied chiefly by dwelling houses.

The line of vision of Mrs. Burkle and William while on the sidewalk or in the traveled way was unobstructed looking east and up the street as far as and beyond Downes street. It was likewise unobstructed from any point in the street looking south from and beyond Downes street, and the motorman, had he looked, could have seen Mrs. Burkle and her two children during all the time after she left her house and as they left the sidewalk and walked or rode across the street.

Mrs Burkle stepped from the curb and had nearly walked across the street when she turned and saw William on his tricycle between the rails of the north track and the trolley car 10 feet from him and approaching at the speed of 20 miles an hour.

This car was near the end of its run. The conductor was at the time of the accident in the middle of the car preparing for the return trip, while the motorman was bending over the chain and preparing the car for the return trip and keeping no lookout. Mrs. Burkle on seeing William in peril screamed and the motorman, hearing the scream, straightened up and placed his left hand on the lever. He rang no gong and gave no warning to the child of the car's approach and did not drop his fender. The car struck the child, threw him from his tricycle, and he died as a result of the collision.

When Mrs. Burkle stepped into the gutter to cross the street William dismounted from his tricycle and put it in the gutter, and the car was then 500 feet distant. He then mounted and rode across the street and onto the north track, where defendant's car hit him. The motorman had time and opportunity to have stopped his car and dropped the fender and given the child warning of the car's approach before hitting the child, but he failed to do these, because he was not keeping a proper lookout and did not have his car under control.

When the car was 50 feet or more away from William, the motorman knew that he was then at the curb and headed across the street. He could at this time have stopped his car before reaching the place of accident.

The defendant offered evidence to prove these facts: At all times prior to the accident the motorman was keeping a proper lookout and had the car under proper control and was operating it at proper speed and using due care to avoid striking persons who might be on the track.

The motorman did not see Mrs. Burkle and daughter when they crossed the street owing to the distance the car was away. He saw the boy William when he was getting from the curb to the street, and the car was then 50 feet away in a direct line from the boy. He sounded his gong, and there was nothing to indicate that the boy would attempt to cross the track. As soon as the boy started from the curb toward the track, the motorman sounded his gong and reversed his car and did all he could to stop the car. He did not drop the fender because there was not time. The motorman did all he could after he saw the boy was in peril, but it was impossible for him to have avoided striking the boy.

The cause of the accident was the act of the boy William in riding onto the north track when the car was only a few feet away.

There was nothing in the circumstances that would have warned the motorman, who was keeping a proper lookout, that the boy was in, or about to enter into, a position of peril, before the motorman acted.

Frank S. Bishop, of New Haven, for appellant.

Harrison Hewitt, of New Haven, for appellee.

WHEELER, C.J.

The plaintiff claimed to have proved that the injuries to the decedent resulted from the failure of the motorman to keep a proper lookout, to have his car under proper control, to give warning of the approach of the car, and to drop his fender when danger of collision threatened.

The decedent was a child of immature years.

The court instructed the jury that-

" It was not his (the motorman's) duty in the absence of special circumstances, which do not appear in this case, to keep a more vigilant watch for children than for adults, since in the nature of things his lookout must be for all legitimate users of the street alike. It was only after the actual presence of the plaintiff's intestate in danger or about to go into danger was seen or ought to have been sent by him, that his duty to him, plaintiff's intestate, was greater than it would have been to adults."

This was error.

The special circumstances do appear; a congested and populous neighborhood, composed mainly along this street of dwelling houses and a traveled way 38 feet wide.

It was the motorman's duty to keep in mind the populous character of the street, the residential character of the neighborhood, the likelihood of children being in the street and of their crossing from one side to the other, and to bear in mind the characteristics of young children in respect to their nonappreciation of danger, and therefore reasonable care by him at this place would mean the operation of his car with greater care to avoid injury to children than if they were adults able to better help themselves. Di Maio v. Yolen Bottling Works, 93 Conn. 599, 107 A. 497. The motorman's duty was to operate his car in this locality in the expectancy of children being upon this street and upon the railroad track; his duty in this particular was to anticipate the danger. His duty never varied. It did not rest dormant until he saw, or ought to have seen, a child in danger or about to go into danger.

The verdict of the jury, taken in connection with the claims of the parties of evidence proved,...