McNaught v. Smith

• Decision Date: 10 January 1941
• Court: Connecticut Supreme Court
• Parties: McNAUGHT v. SMITH.

17 A.2d 771

127 Conn. 450

McNAUGHT v. SMITH.

Supreme Court of Errors of Connecticut.

January 10, 1941

Appeal from Court of Common Pleas Court, New London County; Charles B. Waller, Judge.

Action by Harry C. McNaught against Edward A. Smith to recover damages for injury to plaintiff's automobile alleged to have been caused by the negligence of the defendant. The case was tried to a jury. The jury returned a verdict for defendant, but the court set aside the verdict for error in the charge, and the defendant appeals.

No error.

Isadore Chaplowe and Vincent P. Dooley, both of New Haven, for appellant.

Charles V. James and Arthur M. Brown, both of Norwich, for appellee.

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

BROWN Judge.

On October 22, 1938, the plaintiff drove his Dodge coupe easterly along Chelsea Parade South in Norwich into its intersection with Broadway, and turned right to proceed southerly on Broadway. Meantime the defendant drove his Reo truck southerly on Broadway through the intersection, and at a point just south of it the left front corner of the coupe was in collision with the right side of the truck. In this action to recover for the damage to the coupe, one ground of negligence alleged in the plaintiff's complaint is the defendant's failure to grant the right of way. The jury rendered a verdict for the defendant which the court, upon the plaintiff's motion, set aside on the ground that it had erred in its charge to the jury. This ruling is the sole basis of the defendant's appeal.

In its charge the court quoted § 636c of the General Statutes Cum.Sup.1935, concerning the right of way at intersections, and then gave to the jury this instruction which it subsequently decided to be erroneous and to require that the verdict be set aside. ‘ Now, gentlemen, you will note from the reading of this statute that it gives the right of way to a car approaching the intersection from the right only when both cars are arriving at the intersection at approximately the same time. If you find that the plaintiff's car and the defendant's truck were arriving at the intersection at approximately the same time then the plaintiff, being on the right of the defendant, had the right of way, and it was the duty of the defendant to yield the right of way to the plaintiff. If, however, the defendant's truck reached the intersection first, the statute giving the right of way to a car approaching from the right when both are arriving, approximately the same time, is not controlling. On the contrary, if the defendant arrived at the intersection first and was in the intersection before the plaintiff entered then the defendant had the right of way and the right to assume that the plaintiff would yield that right of way to him.’

The plaintiff's claims of proof were that when his car was about ten to fifteen feet west of and approaching the intersection at from twelve fifteen miles per hour, he saw the defendant's truck not less than two hundred feet north of the intersection approaching at about forty miles per hour; that as the plaintiff continued to approach he reduced the speed of his car and proceeded to make a right turn into Broadway heading south; and that his car and the defendant's truck were approaching so as to arrive at the intersection at approximately the same time. Those of the defendant were that his truck was traveling south at about twenty-five miles per hour and slowed down somewhat a short distance north of the intersection, and he then saw the plaintiff's car approaching the intersection at a point quite a distance westerly of it; that the plaintiff's car was just approaching the intersection as the truck entered it, and the car...