Murphy v. Adams

• Decision Date: 05 October 1923
• Citation: 99 Conn. 632,122 A. 398
• Court: Connecticut Supreme Court
• Parties: MURPHY v. ADAMS.

122 A. 398

99 Conn. 632

MURPHY v. ADAMS.

Supreme Court of Errors of Connecticut.

October 5, 1923

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Action by Florence Murphy against Dunbar W. Adams. From a judgment for plaintiff, defendant appeals. No error.

J. Birney Tuttle and Charles J. Martin, both of New Haven, for appellant.

Robert J. Woodruff, of New Haven, for appellee.

BURPEE, J.

To sustain the allegations of her complaint, the plaintiff claimed to have proved that she was standing, with reasonable care, on a part of the highway commonly used by foot passengers, and in a place two or three feet outside of the edge of the macadamized part of the road commonly used by vehicles, when she was suddenly struck by a motor car which the defendant was operating at a speed of about 40 miles an hour without proper headlights and without signal of his approach. On the other side, the defendant claimed to have proved that his headlights were lighted when he first saw the plaintiff, who was then on the side of the highway, about 10 or 15 feet in front of his car, and almost in its path; that he was then driving at about 20 miles an hour; that he sounded his horn, and turned sharply to his left, and that the plaintiff stepped or lurched toward the center of the road, and was hit by the right-hand side of his car.

The defendant also claimed to have proved that the plaintiff just before she was struck, made no use of her eyes or senses to observe the approach of the automobile. Assuming that to be a fact, he bases upon it the first, fourth, and the twentieth assignments of error, in which he states that the trial court erred in failing to instruct the jury as requested; that such neglect was contributory negligence as a matter of law, and barred a recovery in this action. But the record discloses that the defendant is not justified in assuming that the plaintiff's conduct was exactly what he claimed to have proved. It appears that the plaintiff claimed to have proved that just before the accident she had been walking slowly about 50 yards along the side of the highway, and 2 or 3 feet outside of the macadamized surface, all the time facing and looking in the direction from which the defendant was coming, and that then she was spoken to by a lady sitting with two other persons in an automobile which was on the opposite side of the road; that the plaintiff stopped, and, still standing in the same place outside of the macadamized part of the road, turned her face toward the lady who addressed her, spoke a few words to her and was answered very briefly, and that at that instant she was struck by the defendant's automobile, which came upon her so suddenly that no lights on it were seen nor any signal heard by the plaintiff or by any witness of the accident, and that the plaintiff had stopped and was facing and talking with the lady in the car across the road not more than a minute of time before the collision. If the jury found these to be the facts, the question whether the plaintiff used reasonable care in such circumstances was one of fact for them to determine under the instructions of the trial court. Russell v. Vergason, 95 Conn. 431, 436, 111 A. 625. Upon this subject the court instructed them in this manner:

" In determining whether the requisite degree of care has been exercised in any given situation by the plaintiff or the defendant, the conduct of each must be judged in the light of all the surrounding circumstances, and of such knowledge as each has of the situation or would have had by the exercise of due care in the use of the senses. The test is the same for the plaintiff and the defendant. Every person is required to use his senses and is charged with seeing and knowing the things that he or she ought to see or know in the exercise of their faculties as a reasonably prudent person. * * * She was bound to make use of her senses so as to avoid a danger that threatened or that she might reasonably anticipate under all the circumstances."

It is apparent that the most important question to be decided in considering the plaintiff's conduct was where she was when she was struck. The trial court told the jury that unquestionably a person standing or walking on the hardened part of the...