Perry v. Haritos

• Decision Date: 01 March 1924
• Citation: 100 Conn. 476,124 A. 44
• Court: Connecticut Supreme Court
• Parties: PERRY v. HARITOS.

124 A. 44

100 Conn. 476

PERRY v. HARITOS.

Supreme Court of Errors of Connecticut.

March 1, 1924

Appeal from Superior Court, New Haven County; George E. Hinman Judge.

Action by John Perry, administrator, against Tassos G. Haritos, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. Judgment for defendant on a directed verdict, and plaintiff appeals. Error, and new trial ordered.

The jury might reasonably have found these facts: The defendant owned and operated a wholesale and retail dairy business in New Haven, and had in his employ on one of his milk routes one Lester Hawley, whose employment required him on June 9 1922, to distribute between 1 and 8 a. m. 500 quarts of milk and cream from defendant's auto truck which he drove. On this day he had by 5 a. m. delivered about half of the 500 quarts and had the rest to deliver. While engaged in his work he saw about 5 a. m. a Mrs. Strazynsky carrying several bundles and apparently waiting for a trolley car; he asked her how far she was going, and, on being told Poplar street, said, " Jump in if you want to. I am going that way too." Mrs. Strazynsky then boarded the truck, and sat in the front seat with Hawley and he drove down Grand avenue as far as Wallace street without making a stop. The defendant had a customer on Grand avenue, a number of blocks below Wallace street and not far from Poplar street, and at the time of the accident Hawley was on his way to deliver milk to this customer. A trolley car approached on Grand avenue from the west and stopped just before reaching the intersection of Grand avenue and Wallace street. The decedent alighted from this car after it had stopped, walked to the northeast curb at the intersection of these streets in front of the crosswalk on Grand avenue, and when the trolley car had moved out of the way stepped upon the crosswalk and walked upon it across Grand avenue, which was 40 feet wide at a speed of 3 miles an hour. Whether Perry looked to the east when he stepped from the curb, from which direction Hawley was approaching, did not appear. When Perry had gone 31 feet the truck Hawley was driving struck him, and carried him 72 feet, and it proceeded 41 feet farther before it was stopped. When Perry stepped off the northeast curb to cross Grand avenue, the truck Hawley was driving was distant 450 feet. It was then traveling very rapidly, and continued so to travel until it struck Perry, and Hawley was not keeping a reasonable outlook for travelers, and did not have his car under reasonable control. The accident was due to the excessive speed the truck was traveling, to the failure of Hawley to keep a reasonable lookout, and to have the truck under reasonable control and to operate it with reasonable care.

Joseph V. Esposito and William J. McKenna, both of New Haven, for appellant.

Raymond E. Baldwin and Philip Pond, both of New Haven, for appellee.

WHEELER, C.J. (after stating the facts as above).

The direction of the verdict and a single ruling upon evidence are the questions we are asked to review upon this appeal. The court directed the verdict upon two grounds: (1) That the plaintiff had failed to prove that the decedent, Perry, was free from contributory negligence; and (2) that Hawley, the driver of this truck, was at the time of this accident in the execution of the defendant's business within the scope of his employment. The right of the jury to find negligence upon the part of this driver as a proximate cause of the accident is conceded by the defendant's counsel, so that consideration of the direction of the verdict may be confined to the two grounds upon which the trial court rested its ruling. The defendant's claim of contributory negligence on the part of Perry is based upon his having stepped from the curb to the crosswalk and thence proceeded across the street without having looked to the east, where he could have seen this truck approaching at a rapid rate, and have stopped to let it pass. When he stepped from the curb, the jury might have found the truck was some 450 feet distant. Had he looked and seen the truck at this distance he might reasonably have concluded that he could pass over this street, 40 feet in width, before the truck, if operated reasonably, would reach this crosswalk. Whether, in view of the limited traffic on the street at this hour, the fact that this was a crosswalk, that a trolley car had just stopped at this point, and Perry had just alighted therefrom, and that no vehicle was within such distance of the crosswalk as to render it unsafe to pass over the crosswalk had the truck been operated with reasonable care, the jury might reasonably have found Perry's conduct not to have been negligent, and a proximate cause of this accident, was a question of fact for the jury, and not of law for the court. Its decision involved the application to this situation of the conduct of the ordinarily prudent man in a similar situation. And, since the decision was one concerning which reasoning minds could reasonably differ, it presented a question of fact for the trier, and not of law for the court.

As Judge Hall says in O'Connor v. Conn. Ry. & Ltg. Co., 82 Conn. 170, 173, 72 A. 934, 935:

" Due care by one about to cross a street railway track does not always require him to first look for an approaching car. The question of due care in such situations depends upon the circumstances of each case."

The point involved is that discussed in Woodhull v. Connecticut Co., 100 Conn. 361, 124 A. 42, to which reference may be made without further discussion.

The question whether Hawley was engaged in the defendant's business and acting within the scope of his employment was also upon the evidence one of fact for the jury. In view of the fact that Hawley was driving his master's truck loaded with milk which he had just before been distributing in the course of his employment, and in view of the fact that the jury had a right to infer from the testimony of Wade and Kipp that he had a customer on Grand avenue beyond the point of the accident, they might reasonably have found that he was at the time of the accident in the course of his employment. The fact that he had contrary to his orders taken the woman in his truck to carry her along the way she was going and he going had no relation to the question whether he was at the time of the accident in the course of his employment. If this conclusion were one which the jury ought not to make, the circumstances, in no view of the evidence, would enable us to hold, as matter of law, that Hawley was not at the time of the accident engaged in the defendant's business and acting within his employment. The trial court held otherwise upon the theory that Hawley had so departed from the defendant's business as to have abandoned it.

Assuming that Hawley intended at the time he took the woman in the truck to deviate from his employment until after he had left the woman at her home, we could not hold, as matter of law, that this deviation was so great, as to compel the determination that the servant was not on the master's business. The deviation in this case would have been in distance about 13 city blocks, and in the time required to cover it to be measured by the speed of ordinary...