Mezzi v. Taylor

• Citation: 99 Conn. 1,120 A. 871
• Court: Supreme Court of Connecticut
• Decision Date: 03 May 1923
• Parties: MEZZI v. TAYLOR.

120 A. 871

99 Conn. 1

MEZZI v. TAYLOR.

Supreme Court of Errors of Connecticut.

May 3, 1923

Appeal from Superior Court, New Haven County; Frank D. Haines Judge.

Action by Joseph Mezzi, administrator, against William Taylor, to recover damages for the alleged negligence of defendant causing the death of plaintiff's intestate. Verdict and judgment for plaintiff for $6,000, from which defendant appeals. No error.

Cornelius J. Danaher, of Meriden, and Jacob P. Goodhart, of New Haven, for appellant.

Charles J. Martin and Bertrand B. Salzman, both of New Haven, for appellee.

KEELER, J.

The significant portions of the complaint are in substance that the plaintiff's intestate was standing upon a main highway between Wellingford and North Haven at a point about opposite a white pole where trolley cars were accustomed to stop to take on and discharge passengers, and about 15 feet from the northerly side of a crossing known as Tolles Crossing, over which both trolley and steam tracks were laid, and that said tracks were upon the extreme westerly side of the highway; that at that time and place a trolley car was approaching said crossing, which car the deceased and his companion had signaled to stop for them to board the car; and that while the plaintiff's intestate was thus standing on the highway, the defendant, driving his automobile southerly on the same highway, struck the plaintiff's intestate and threw him forward under the wheels of the approaching trolley car and in such close proximity to its wheels that the motorman of the car was unable immediately to stop the car; and that the left wheel of the car went over the arm and upon the chest of the deceased causing injuries resulting in his instant death.

All of these facts the jury could reasonably have found true upon the evidence offered in the case, and could also have found that defendant's automobile was badly damaged, was bent and broken upon its right-hand side, and that the right headlight was smashed. Also, that at the point where the defendant approached the deceased there was a clear range of vision of 1,500 feet in either direction; that the defendant did not see the trolley car until he was about to hit it, and that the said car was fully lighted and had a bright headlight in front; that this car was almost immediately stopped, coming to a standstill within 8 feet of the point where it was when the automobile struck the deceased.

The defendant took the witness stand in his own behalf and upon cross-examination and without objection testified that he was familiar with Tolles Crossing and knew that for quite a long distance in approaching the crossing from the north that objects could be seen in the highway within the range of vision, for at least 1,000 feet. He also testified that he had knowledge that it was a dangerous crossing, and that there was a trolley stop there to receive and discharge passengers. On this particular night his automobile was equipped with headlights that would only disclose an object ahead of it in the highway for 75 feet, and under the particular atmospheric conditions would not disclose an object more than 30 feet ahead of it in the highway. He also testified that he could stop the automobile at the speed in which he was then traveling under all the conditions in approaching Tolles Crossing in at least 15 to 25 feet.

The jury might also have found that the defendant did not see the plaintiff's intestate or his companion on the highway, and did not see the trolley car until just as he was about to strike it with the automobile; he did not blow his horn or sound any warning on approaching the plaintiff's intestate in the highway; also, that as the defendant approached Tolles Crossing there was no traffic or other objects in the highway at the crossing to prevent turning his vehicle to the left and avoid striking the plaintiff's intestate or the trolley car; also, that the defendant did not slacken the speed of his motor vehicle or in any manner attempt to stop it as he approached the plaintiff's intestate in the highway and continued on after striking the plaintiff's intestate at approximately the same speed that he had been maintaining prior to striking him; also, that deceased and his companion while awaiting the trolley car stood for about two minutes watching it approaching from the south, but that during the first minute they watched the roadway to the north for automobiles coming from that direction but saw none, and during the last minute both were looking at the trolley car which they intended to board.

From claimed proof of the defendant the jury might have found that the night of the day of the occurrence in question was dark with rain or a fine mist falling, and that traffic was heavy, that the speed of defendant's car did not exceed 20 miles an hour, and that in the vicinity of Tolles Crossing the speed did not exceed 15 miles an hour, since as at that place there was a slight downgrade, he had reduced speed and also had blown his horn, and kept a sharp lookout and was driving close to the right-hand side of the road. That directly in front of defendant and about 50 feet distant was another automobile proceeding in the same direction. Also, that as the defendant approached said Tolles Crossing, he suddenly saw in front of his car and to the right the deceased and one other man, probably two, standing in the highway. One man ran to the right of his car and one to the left of it. The man who ran to the right of his car stumbled and fell directly in the path of the approaching trolley car. Also, that when said defendant saw the man fall to the track in front of the approaching trolley car, he turned his car sharply to the right and came into collision with the trolley car directly afterward, and that until that time the defendant had not seen the trolley car. Also, that defendant did not strike the deceased with his car, and that the trolley car proceeded beyond the point where the collision occurred between it and the automobile, a distance of about 55 feet, and that the automobile stopped about six feet beyond the rear end of the trolley car.

Negligence was alleged by the plaintiff, in that at the time the injury was inflicted on his intestate defendant was operating the automobile in a negligent, careless, and reckless manner at a high and unreasonable rate of speed, without keeping a proper lookout for persons on the highway in front of him, without giving a timely signal, and without reducing his speed upon approaching this crossing where persons were accustomed to board or alight from trolley cars, and without having his automobile under such control as to enable him to bring it to a stop in time to avoid striking the plaintiff's intestate.

The assignments of error, 23 in number, are somewhat repetitious many of them stating an objection already made in slightly different form. Counsel for defendant has, however, grouped these in his brief, so that the principal points advanced may be largely reduced, and such an arrangement can best be followed in considering the case. Reasons of appeal numbered 7 to 12, inclusive, with which counsel group Nos. 15 and 16, the latter 2 considering the case from the viewpoint of damages, relate to the right of recovery upon the allegations of the complaint as related to the existing statute concerning claims resulting from a negligent killing. Plaintiff objects to any notice being taken of this point in that there is nothing in the finding to show that such a question was raised or urged upon the trial. In part 3 of the finding the trial judge includes these claims as stated by the appellant, and it is fair to assume that they were made at some stage of the trial. The defendant moved for a directed verdict in his favor and also to set aside the verdict as rendered, and in either of such motions this claim might properly have appeared, and defendant states in his brief that they were so made. As urged before us, the...