De Mare v. Guerin

• Decision Date: 05 April 1939
• Citation: 5 A.2d 711,125 Conn. 362
• Court: Connecticut Supreme Court
• Parties: DE MARE v. GUERIN et al.

5 A.2d 711

125 Conn. 362

DE MARE v. GUERIN et al.

Supreme Court of Errors of Connecticut.

April 5, 1939

Appeal from Court of Common Pleas, Fairfield County; Samuel Mellitz and John T. Dwyer, Judge.

Action by James De Mare against Charles Guerin and the City of Norwalk to recover damages for personal injuries, alleged to have been caused by the negligence of the defendants, brought to the Court of Common Pleas, where a demurrer to the defendant city of Norwalk to the complaint was overruled, a demurrer to that defendant's special defense was sustained, and the issues were tried to the jury. Verdict and judgment against the named defendant, and judgment of nonsuit in favor of the defendant city of Norwalk, from which the plaintiff appealed.

No error.

John Keogh, Jr., of South Norwalk, for appellant.

Samuel R. Sallick, of South Norwalk, and Paul R. Connery, of South Norwalk, for appellee City of Norwalk.

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

MALTBIE, Chief Justice.

The plaintiff, a passenger in a car driven by Herbert Feinberg was injured as a result of a collision between it and another car owned by the defendant city of Norwalk as a part of the equipment of its fire department, and being driven at the time by the other defendant, Guerin, who was alleged to have been operating it in the course of his employment as a mechanic of that department. When the plaintiff had concluded offering his testimony in chief, the city moved for a nonsuit in his favor, which the trial court granted. The case then proceeded and the plaintiff secured judgment against Guerin. From the denial of a motion to set aside the nonsuit granted to the city, the plaintiff has appealed. He bases his claim upon the ground that the operation of the automobile by Guerin in the condition in which it was constituted a nuisance.

Taking the view of the evidence most favorable to the plaintiff, the jury might have found the following facts: The car driven by Guerin had been purchased by the city in 1921. It was a Buick roadster with brakes only on the rear wheels and with wooden wheels. It was used until 1929 by the chief of the fire department, but in that year it was turned over to Guerin for use by him in connection with his duties as a mechanic of the department. Just prior to the accident he was driving it at a speed of about forty miles an hour. Due to the stopping of a truck which was proceeding ahead of him in the same direction, he applied the brakes on his car with considerable force. One rear wheel locked so that it made a skid mark upon the dry pavement, but the other rear wheel continued to turn. The car, out of control of the driver swerved toward that driven by Feinberg. The defective braking threw the car out of balance and the rear wheel which had not locked broke. This swung the car further toward that of Feinberg and caused a collision between the two, resulting in the plaintiff's injuries.

We have held that the operation of an unlicensed automobile upon the highways does not constitute a nuisance, Gonchar v Kelson, 114 Conn. 262, 271, 158 A. 545; that an automobile is not in itself an intrinsically dangerous instrument, to be classed with ferocious animals or high explosives, Greeley v. Cunningham, 116 Conn. 515, 518, 165 A. 678; and that where injury results from a momentary negligence in its operation, it cannot be said to...