Lukosevicia v. Bartow

• Citation: 122 A. 709,99 Conn. 723
• Court: Connecticut Supreme Court
• Decision Date: 17 November 1923
• Parties: LUKOSEVICIA v. BARTOW.

122 A. 709

99 Conn. 723

LUKOSEVICIA v. BARTOW.

Supreme Court of Errors of Connecticut.

November 17, 1923

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Action by Peter Lukosevicia, administrator, against Benjamin L Bartow. Judgment for defendant and plaintiff appeals. Error and new trial ordered.

The plaintiff's claims as to defendant's negligence, as alleged in the complaint and made at the trial, were as follows:

(2) That at said time and place defendant was operating a motor vehicle upon said highway, passing in the same direction as plaintiff's intestate was walking, and that he operated it in a careless and negligent manner, so that said motor vehicle struck said plaintiff's intestate while he was a traveler on said highway, inflicting injuries, from which plaintiff's intestate died within a short time thereafter.

(3) That defendant failed to give plaintiff's intestate any warning of his approach by blowing a horn as he approached him, failed to slacken his speed as required by law when overtaking plaintiff's intestate, and did not seasonably turn to the left, and drove his car at an unreasonable and reckless rate of speed, in view of the width and traffic of said highway.

(4) That defendant by the exercise of reasonable care could have seen plaintiff's intestate as he was walking down the highway in ample time to stop said motor vehicle before striking him, and that he failed and neglected to keep a careful lookout so as to avoid exposing plaintiff's intestate to danger, and that plaintiff's intestate did not contribute to his injuries by any want of care upon his part.

The assignments of errors are these:

(1) The court erred in its entire charge in failing to present to the jury all the issues that arose in the trial of the cause, and the charge was inadequate to present all of said questions and to be a sufficient guide to the jury on all questions of law arising in the course of said case.

(2) The court erred in charging the jury as follows:

" The other important thing which the plaintiff must establish is that his intestate at the time was in the exercise of due care, for the law is so that, no matter how negligent the defendant may have been, if the plaintiff's intestate himself was negligent, thus materially contributing and concurring in bringing about this accident which resulted in his death, then the plaintiff cannot recover. So that gentlemen, perhaps the first inquiry that you will enter upon when you go to your jury room will be this question, ‘ Was the plaintiff's intestate himself in the exercise of due care at the time of this accident?’ And if you should reach the conclusion that the plaintiff's intestate was not in the exercise of due care at that time and that this accident either resulted from his own failure to observe due care, or resulted from the concurring act of the defendant and the intestate, then that would end the case, and you would not have to consider the further elements in this transaction."

(3) The court erred in charging the jury as follows:

" The further allegation is that the defendant drove the car at an unreasonable and reckless rate of speed in view of the use, width, and traffic of said highway. That is a statute which I suppose, gentlemen, most of you are familiar with, the statute being that ‘ No person shall operate a motor vehicle on any public highway of the state recklessly or at a rate of speed greater than is reasonable and proper having regard to the width, traffic, and use of the highway.’ Then the intersection of streets, weather conditions--‘ so as to endanger the property or life or limb of any person.'

There is no law in the state of Connecticut, gentlemen, which absolutely limits the speed of an automobile upon a...