Plona v. Connecticut Co.

• Decision Date: 05 November 1924
• Court: Connecticut Supreme Court
• Parties: PLONA v. CONNECTICUT CO.

126 A. 529

101 Conn. 445

PLONA v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

November 5, 1924

Appeal from Superior Court, New London County; Christopher L. Avery Judge.

Action by Alexander Plona, administrator, against the Connecticut Company, for damages for injuries resulting in death. Verdict and judgment for plaintiff, motion to set aside verdict denied, and defendant appeals. Error, and new trial ordered.

Testimony that trolley track, close to northern edge of traveled portion of road, was commonly used as a footpath, that it was considered unsafe to walk in the traveled roadway, and that path along north side of track was rough, held to afford no basis for inference as to probable conduct of deceased, who came from a house north of track.

Resolving all conflicts of testimony in the plaintiff's favor, the material facts which the jury might reasonably have found or inferred from the evidence, are as follows:

At Waterford the trolley track runs close to the northern edge of the traveled portion of the Boston post road, and both track and highway are straight for a long distance east of the place where the decedent was struck and killed. The decedent and her husband, the plaintiff, lived in westernmost of three houses north of the highway; the Prest house was nearly 200 feet to the east, and from its easterly side a driveway extended across the trolley track to the traveled road: about 140 feet east of this driveway was the Bernstein house. Plona sold milk to the Bernsteins and on the evening of the accident the decedent delivered milk at the rear of the Bernstein house, and was last seen by Mrs. Bernstein walking rapidly south in the Bernstein yard on a path leading toward the highway. It was then dark, and there was no direct testimony as to the course taken by the decedent after she left the Bernstein house except that of the motorman, who testified that he first saw her as she stepped across the north rail of the track directly in front of the car, which was running west, at a point somewhere about the Prest driveway. The jury might reasonably have refused to believe this story. There were three ways used by pedestrians any one of which the decedent may have taken in going westerly from the Bernstein house to the place where she was struck: She may have crossed the track at or near the Bernstein house and walked some part of the way in the traveled roadway; she may have

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