Mavrides v. Lyon

• Decision Date: 01 July 1937
• Court: Connecticut Supreme Court
• Parties: MAVRIDES v. LYON et al.

193 A. 605

123 Conn. 173

MAVRIDES v. LYON et al.

Supreme Court of Errors of Connecticut.

July 1, 1937

Appeal from Superior Court, New Haven County; Patrick B O'Sullivan, Judge.

Action by Peter Mavrides against William C. Lyon and another to recover damages for personal injuries, alleged to have been caused by the negligence of the defendants, brought to the superior court in New Haven County and tried to the jury before O'Sullivan, J. Verdict and judgment for defendants, and plaintiff appeals.

No error.

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

David M. Reilly and Frank W. Flood, both of New Haven, for appellant.

Charles A. Watrous and John B. Grant, both of New Haven, for appellees.

AVERY Judge.

The plaintiff brought this action to recover damages for injuries claimed to have been received while crossing Congress avenue in New Haven near Hill street on November 28, 1935, at about 7 p. m. He claimed that he was struck by an automobile owned by the defendant Walter Lyon and operated by his agent William C. Lyon, in an easterly direction on Congress avenue, and that his injuries were due to the negligent operation of the automobile by the driver thereof. The case was tried to a jury and a verdict returned in favor of the defendants, from which the plaintiff has appealed, assigning errors in the instructions of the court to the jury; his claim in general being that the instructions were inadequate, unduly favorable to the defendants, and in certain particulars erroneous.

We test the charge by the claims of proof of the parties as set forth in the finding. The plaintiff, among other things, claimed to have proved the following facts: Congress avenue, in New Haven, runs east and west; is forty-two feet four inches wide from curb to curb; is intersected on its south side by Hill street, and on its north side, somewhat west of Hill street, by Temple street. A double set of trolley tracks runs through the center, the rails occupying fifteen feet and one-half inch of its width. The pavement between the rails is bituminous macadam, and north and south of the rails it is of brick construction. At the time in question, it was raining. The plaintiff had been walking on the south side in a westerly direction, and, on arriving at a point where the easterly sidewalk of Hill street meets the southerly sidewalk of Congress avenue, he turned to his right, stepped down from the southerly curb line of Congress avenue, and proceeded to cross on the crosswalk in a general northerly direction. As he started to cross, he looked to his left in a westerly direction and observed an automobile approaching traveling easterly. There was no other moving traffic in the vicinity. The automobile was then about two hundred feet west of the crosswalk and was not, at the time, moving fast. It was traveling on the most southerly trolley rails. The plaintiff proceeded and had reached a point more than half way across, when he was hit by defendants' automobile, thrown down and injured. The defendant driver did not apply his brakes until about the time the plaintiff was struck, and gave no signal of his approach; his speed at the time of the impact was about twenty-five miles an hour. Although it was raining, the visibility was good and the plaintiff was clearly visible as he crossed the street. The headlights of defendants' automobile were lighted and it was equipped with a windshield wiper which was operating at the time. The plaintiff first observed the automobile two hundred feet away; it was not traveling fast and had slowed down, the operator hesitating and undetermined as to whether to turn to his left into Temple street or continue east on Congress avenue. He finally decided to continue east and, unknown to the plaintiff, the speed of the automobile was increased and continued to increase until the plaintiff was struck. Just west of Hill street, the operator of the automobile had changed gears from second speed to high.

The claims of the defendants differed from those of the plaintiff slightly, the claims being that the plaintiff did not cross at the Hill street crosswalk but stepped out from between parked cars and started to cross at a point east of the walk; that the plaintiff was dressed in dark clothing and the visibility at the time was only fair; that the speed of defendants' car at the time of the collision was twenty miles an hour; that the driver first saw the plaintiff about ten feet ahead of the automobile; and while the plaintiff placed the point of collision to the left of the center line of the highway, the defendants placed it at about the middle of the eastbound trolley tracks.

The claims of the parties in this case present a typical instance of a pedestrian crossing a street at or near a crosswalk and being struck while crossing by a passing automobile; and the question before the jury was whether there was negligence upon the part of the driver of the car and contributory negligence on the part of the plaintiff. So far as the record shows, no requests for instructions to the jury were filed by either party. It follows that if the charge of the court was adequate for the guidance of the jury upon the issues presented, error cannot be predicated by the appellant upon the failure of the court to instruct upon some particular phase of the case upon...