Porcello v. Finnan

• Decision Date: 04 November 1931
• Court: Connecticut Supreme Court
• Parties: PORCELLO v. FINNAN.

156 A. 863

113 Conn. 730

PORCELLO v. FINNAN.

Supreme Court of Errors of Connecticut.

November 4, 1931

Appeal from Superior Court, Hartford County; Frederick M. Peasley Judge.

Action by John Porcello against Frank Finnan for damages for personal injuries alleged to have been caused by defendant's negligence in driving his automobile against plaintiff. The case was tried to the jury. From an order setting aside verdict for plaintiff, plaintiff appeals.

M Joseph Blumenfeld and David R. Woodhouse, both of Hartford for appellant.

Ralph O. Wells and William S. Locke, both of Hartford, for appellee.

HAINES, J.

The single ground of error alleged in this appeal is the action of the trial court in setting aside the verdict of the jury. The court was of the opinion that the jury could not reasonably have found otherwise than that there was contributory negligence on the part of the plaintiff.

The accident took place on Enfield Street in the village of Thompsonville, a straight public highway running north and south, substantially level for a considerable distance in both directions from the point of collision, with a twenty-foot traveled way and broad shoulders on both sides available for cars in case of need.

The testimony for the plaintiff shows that he stepped from the right side of a car which was parked on the east shoulder of this street headed north, with its left wheels about a foot and a half east of the edge of the traveled portion of the street, and passed around to the front of the car with the intention of crossing the street. As he reached the edge of the traveled road in front of the parked car, he looked in both directions before stepping into the roadway and saw nothing coming from the north, but did see the defendant's car coming from the south. He estimated that it was then about two hundred and twenty-five to two hundred and fifty feet away, and judged that he could safely cross. Walking forward " a little fast" until he reached the middle of the road, he noticed the car was headed for him and had nearly reached him, and that the driver was not trying to stop. The car then zigzagged first to the left and then to the right and struck the plaintiff, inflicting serious injuries. Upon this appeal the negligence of the defendant is not a matter of dispute, the sole issue being the contributory negligence of the plaintiff.

The essential disagreement of the defendant with the plaintiff's evidence, as above outlined, relates to the speed of the defendant's car and its distance from the plaintiff at the moment the latter started to cross the street. The defendant's estimate of his speed is lower than that of the plaintiff's eyewitnesses. The defendant says he did not see the plaintiff until the latter was in the center of the right half of the traveled road way and about a car length from him. Hi-failure to see the plaintiff is apparently explained by the fact, testified by two of the eyewitnesses who were a short distance south of the place of the accident, that they attracted the attention of the defendant as he passed them by motioning to him for a ride and that the defendant motioned to them in return but did not stop. Counsel for the defendant now claim that the forty or fifty mile speed of this car and its distance from the plaintiff, as established by the practically uniform testimony of eyewitnesses, must have been incorrect. To show this, it is calculated that at " march time" it would have required two and three-tenths seconds for the plaintiff to pass from the front of the standing car to the point where he was struck, and this is then compared with the estimated distances traveled by both the plaintiff and the defendant in that space of time, and the conclusion is thus...