Neal v. Shiels, Inc.

• Citation: 166 Conn. 3,347 A.2d 102
• Court: Supreme Court of Connecticut
• Decision Date: 19 February 1974
• Parties: Brenda NEAL et al. v. SHIELS, INC., et al.

Page 102

347 A.2d 102

166 Conn. 3

Brenda NEAL et al. v. SHIELS, INC., et al.

Supreme Court of Connecticut.

Feb. 19, 1974.

Everett F. Fink, Hartford, for appellants (named defendant and defendant Samuel Chester).

William F. Gallagher, New Haven, with whom, on the brief, was Cyril Cole, Hartford, for appellees (plaintiffs).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

The plaintiff Brenda Neal, a minor, and her father, acting as next friend and for himself, brought this action to recover damages for injuries suffered and expenses incurred and to be incurred, which were alleged to have been caused by the negligence of four defendants, Shiels, Inc. Samuel Chester, Edward Mansfield and Margherita Davidson. The jury returned a verdict for the plaintiffs and the defendants, Samuel Chester and Shiels, Inc., appealed. The defendants Mansfield and Davidson did not appeal. When in this opinion we refer to the defendants we refer only to Chester and Shiels, Inc., unless otherwise indicated.

The defendants assigned error in portions of the court's charge to the jury, and to the court's refusal to set aside the verdict. The merits of the assignments of error relating to the charge to the jury are determined by the claims of proof of the parties. Practice Book § 635; Busko v. DeFilippo, 162 Conn. 462, 464, 294 A.2d 510; Levett v. Etkind, 158 Conn. 567, 569, 265 A.2d 70. The claims of proof by the plaintiffs are as follows: On Monday, July 5, 1965, a clear, dry day, at 1 p.m., the defendant Mansfield was operating a Buick owned by the defendant Davidson easterly on Mather Street, a thirty-foot-wide street in Hartford. There were no cars in front of the defendant Mansfield as he proceeded easterly on Mather Street but there was traffic flowing in a westerly direction. Cars were parked to Mansfield's left on the north side of the street. At that time a Mister Softee ice cream truck owned by the defendant Shiels, Inc., and operated by the defendant Chester was the only vehicle parked on the south side of Mather Street. The truck was parked on the wrong side of the road, facing west and the defendant Mansfield saw about fifteen to twenty children gathered around it. After pulling over to the side of the street to allow a westbound vehicle through, the defendant Mansfield started to drive his car past the ice cream truck. When his car was approximately three-quarters of the way past the rear of the truck, he observed a child, the plaintiff, Brenda Neal, coming from behind the truck on his right and heard a thump. He stopped his car, got out and observed Brenda's mother pick up Brenda. He then drove the child and the mother to the hospital.

The Mister Softee truck involved is a one-ton Ford van, painted red, white and blue and decorated with decals of cones shakes and sundaes. A sign, 'Caution-Watch Out For Children,' is on the rear of the truck and when the truck stops the amber lights on the right and left rear corners blink. To alert children and adults, the truck is equipped with a bell which emits a loud, sharp, gong-like sound. The driver never stops in any location when there are no customers. If customers appear the driver stops, sells his products and then moves on. The children and adults in the area are aware that they must get to the truck quickly because the truck might leave. The driver-salesman serves ice cream from inside of the truck to his customers who stand outside.

The neighborhood in the vicinity of the occurrence has a great number of children and is a thickly populated section. It is composed mostly of tenement houses. The defendant Chester was familiar with Mather Street, specifically with respect to the type of neighborhood and the numerous children in the area. Previous to the accident, Mister Softee trucks selling ice cream had appeared in the vicinity and on Mather Street.

Brenda Neal (called the plaintiff) lived with her family on the second floor of a tenement house on the north side of Mather Street. Immediately prior to the accident the plaintiff, age four, was playing with her sister Glendora, age six, in the back yard of their home, and their mother was upstairs. As the plaintiff and Glendora were playing, they heard the bells of the ice cream truck approaching the area and the plaintiff went out of the back yard onto the driveway at the side of the house toward the front of the house. Glendora then went upstairs to tell her mother that the plaintiff had gone out front because the mother had ordered the children not to cross the street. ¹ The plaintiff went out to the front of her home and while there saw the ice cream truck stopped across the street for the purpose of selling ice cream. For a time while the plaintiff was in front of her home, she was so situated that the street separated her from the ice cream truck. When Glendora came upstairs, her mother went down the front stairs and saw the truck parked across the street. As she was about to cross the street to get the plaintiff, she saw a car coming and waited for it to pass. While waiting, she saw the plaintiff begin to recross the street from the rear of the ice cream truck. She called to the plaintiff but the warning was too late and the child was struck and knocked to the pavement.

The defendants' claims of proof were that the defendant Chester did not sell any ice cream on Mather Street, that after making sales on Brook Street he took a right on Mather Street following a Buick traveling at a high rate of speed; that the traffic stopped on Mather Street and he also stopped in the line of traffic with the Buick immediately ahead of him; that the cars ahead then proceeded on and he proceeded through Mather Street and turned right on Green Street. The defendant Chester did not see the plaintiff or know of her crossing the street or of her whereabouts prior to or at the time of the accident. The defendant Chester's employer, the defendant Shiels, Inc., had posted instructions in his truck directing him not to stop on Mather Street. No other operator employed by Shiels, Inc., was assigned a stop on that street. The defendant Chester was trained to serve ice cream only from the right side of the truck facing the curb and not to use the left window which faces the street. The operator of a Mister Softee truck has no way of knowing from which side of the street the customers come. The procedure followed by the defendant Chester was to stop his truck, walk to the back of the truck to the serving area, open the window facing the curb and solicit business. In that position, he could not see anything through the window on the other side of the truck. When he did serve ice cream, he would have to turn around and in doing so, if he were looking out the window, he then could see out on the left side of the truck. The plaintiff's mother had not given her any money to buy ice cream and never had allowed the plaintiff to buy ice cream on her own. Both sides had additional offers of proof, but those recited are sufficient to discuss the issues raised.

In its charge the court restricted the jury's consideration to three paragraphs of the plaintiffs' complaint. These allegations of negligence against the defendant Chester were as follows: '(c) IN THAT he failed to warn the plaintiff under the circumstances, of the approach of the defendant Davidson authomobile; . . . (e) IN THAT he failed to stop the plaintiff from crossing at said time and place; (f) IN THAT he violated the ordinance 25.16(1) (sic) of the city of Hartford relating to peddlers and vendors under the circumstances then and there existing.' In relation to the first two allegations the court charged: 'Paragraphs 6c and 6e are allegations of common law negligence, as I have defined that term for you. It is true and it is the law that where children are involved, if a person knew, or from facts within his knowledge should know, that the presence of children is to be expected, he is bound to anticipate it and exercise reasonable care to avoid injuring them. Conduct which may be careful in dealing with an adult may be careless in dealing with a child. If the presence of children is to be anticipated, the care to be exercised is such as is reasonable, having in view the probability that children, because of their youth, will not discover the condition or realize the risk involved incumbent in the area made dangerous by it.' The defendants claim that by submitting these two allegations of negligence to the jury and in charging as it did, the court in effect adopted the socalled Pied Piper doctrine. ² In examining these two allegations of common-law negligence, neither can be construed as an application of a doctrine of absolute liability or of attractive nuisance.

The defendants further claim that liability cannot be founded upon ordinary negligence because there was no duty owed to the plaintiff as she was not a customer; because no duty attaches until the defendants knew of the plaintiff's presence; and, because the striking of the child by the defendant Mansfield was an independent intervening cause. It is unquestioned that the plaintiff had no funds for a purchase from the defendants; that no evidence was offered to show that the defendant Chester knew of the plaintiff's presence at any time; and that the facts show that the immediate cause of the injuries suffered by the plaintiff was the contract with the car driven by the defendant Mansfield.

Our cases have attemped to safeguard children of tender years from their propensity to disregard dangerous conditions. It definitely has been established by frequent repetition of the statement that the degree of care required of children is 'such care as may reasonably be expected of children of similar age, judgment and experience.' Marfyak v. New England Transportation Co., 120 Conn. 46, 50, 179 A. 9, 10, and cases cited; Greene v. DiFazio, 148 Conn. 419, 424, 171...