Peterson v. Meehan

• Citation: 116 Conn. 150,163 A. 757
• Court: Supreme Court of Connecticut
• Decision Date: 17 January 1933
• Parties: PETERSON v. MEEHAN et al.

163 A. 757

116 Conn. 150

PETERSON v. MEEHAN et al.

Supreme Court of Errors of Connecticut.

January 17, 1933

Appeal from Superior Court. Hartford County; Patrick B O'Sullivan, Judge.

Action by Emanual E. Peterson, administrator, against John F. Meehan and others, for the death of plaintiff's decedent. There was a verdict and judgment for plaintiff, and defendants appeal.

No error.

J Warren Upson, of Waterbury, for appellants.

Edward S. Pomeranz, of Hartford, and Patrick F. McDonough, of New Britain (S. Polk Waskowitz, of Hartford, on the brief), for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, J.

The appeal is based upon claimed errors in denying the motion to set aside the verdict, in finding certain facts without evidence, and in failing to charge as requested.

The plaintiff claimed that shortly after 5 o'clock on the morning of New Year's Day, 1932, his decedent, on his way to work in New Britain, was walking westerly on the southerly shoulder of Robbins avenue when he was overtaken and struck by an automobile driven by the defendant Meehan, Jr., and owned by the defendant John F. Meehan, and so badly injured that he died the following morning, and that the injury and death was caused solely by the negligence of the defendants. The appellants claim that the court should have set aside the verdict which the jury rendered for the plaintiff, because the evidence did not show that the decedent was on the highway and in a position of danger for a sufficient time to permit the driver to avoid a collision with him. They contend that the evidence showed the decedent entered the path of the car at a moment when it was impossible to avoid striking him.

There was evidence from which the jury could reasonably have found that the decedent, a man seventy-one years of age, left his home to go to his work. He was wearing a dark overcoat and carrying a lunch box. He crossed from his home on Hillcrest street to Robbins avenue in the direction of New Britain, and had reached a point about half way between Stuart and Johnson streets which intersect Robbins avenue, when he was struck. There was a sidewalk on the south side of Robbins avenue at this point, built on the top of a terrace sixteen or eighteen inches high, while to the west of Johnson street there was only an irregular cinder walk for a block, and then an irregular concrete walk for several hundred feet, and for the remainder of the distance to New Britain no sidewalk at all. The whole picture presented by this and other evidence amply justifies the conclusion that the decedent was walking along the southerly shoulder of Robbins avenue on his left-hand side of the roadway, when he was overtaken and struck. This portion of Robbins avenue runs substantially east and west with a twenty-foot roadway, clear and unobstructed for more than 1,000 feet east of the point of collision. There were electric street lights in use, one in front and one back of the decedent, and the lights of the car were also in use. The driver testified he could see " brightly" for 100 feet and " vaguely" for 200 feet ahead. The defendant driver with a lady friend had attended a New Year's party in Hartford, and, after being up all night, was returning to New Britain. There was also evidence from which the jury could not unreasonably have concluded that he had been drinking. The court properly reminded the jury of the fact as one of common knowledge, that a pedestrian with dark clothing against the dark background of a roadway is less readily seen by the driver of an approaching car than if the clothing were of light color. Whether under these circumstances the driver was negligent in failing to see the decedent in time by reasonable care to avoid striking him, was a question of fact for the jury, and their finding that the driver was negligent in so failing and driving on the left side of the road and striking the decedent is amply supported by evidence and the permissible inferences therefrom. Under the statute (General Statutes, Cum. Supp. 1931, p. 261, § 598a) it was incumbent upon the defendants in this case to allege and prove the contributory negligence of the plaintiff's decedent. From a careful study of the evidence, we are entirely clear that there was ample basis for the conclusion of the jury that such negligence was not established. The motion to set aside the verdict was properly denied.

Error is predicated upon several paragraphs of the finding. Both in argument and brief the appellants treat the finding as one of facts and urge that the paragraphs attacked are based only upon inferences which the plaintiff claimed could be drawn from the testimony. The finding in a jury case is not a determination of facts as such, but only a narrative statement of what evidence was offered to prove, and what the party claims was proved either directly or by inferences reasonably drawn. Its sole...