Radwick v. Goldstein

• Decision Date: 27 July 1916
• Citation: 98 A. 583
• Court: Connecticut Supreme Court
• Parties: RADWICK v. GOLDSTEIN.

98 A. 583

RADWICK

v. GOLDSTEIN.

Supreme Court of Errors of Connecticut.

July 27, 1916.

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Action by Emma Radwick, administratrix, against Israel Goldstein, to recover damages for negligently causing death of intestate. Verdict and judgment for defendant, and plaintiff appeals. No error.

North Main street is one of the principal streets in the borough of Naugatuck, and runs in a general northerly and southerly direction. It is 40 feet in width, with a 7-foot sidewalk on its westerly side. Upon its easterly side there is no sidewalk. On that side of the street for some distance are double tracks of a trolley turnout, occupying about 14 feet of its easternmost portion. The rails are laid flush with the highway surface, and the portion of the street occupied by the turnout forms a part of the traveled way. The westerly side of the street, free from tracks, is about 25 feet wide. About 150 feet south of the northerly end of this turnout is a regular stopping place for the trolley cars, indicated by a white pole, and passengers alight from and board the cars at this point. South-bound cars use the westerly tracks of the turnout. At a point in the highway some 100 feet or more north of the pole, the plaintiff's intestate, while riding a bicycle, came into collision with an automobile driven by the defendant, and received injuries which resulted in his death. The circumstances attending this collision were in dispute at the trial.

The plaintiff offered evidence to prove, and claimed to have proved, that just prior to and at the time of its occurrence, which was in the daytime, the deceased was proceeding northerly on his wheel; that at the white pole he passed, at a speed of from 5 to 10 miles an hour, a south-bound trolley car standing there to allow passengers to get off and on; that he passed some 6 or 8 feet to the west of the car, and proceeded straight on some 100 feet, when the defendant, coming from behind at the rate of from 25 to 30 miles an hour, and unobserved and without warning, ran into the rear of his bicycle. He claims to have proved that the defendant passed the street car at the rate of from 25 to 30 miles an hour; that, although he. saw the intestate, or might have seen him, had he made proper use of his senses, since there were no teams or other obstructions to his clear view of the highway, he did nothing to slacken his speed or change his course, so as to pass around the intestate, as he might readily have done, or do anything to avoid a collision.

The defendant, on the other hand, offered evidence to prove, and claimed to have proved, that as he was traveling northerly at the rate of from 10 to 15 miles an hour he met the trolley car, then in motion, going south on the turnout; that after he had passed the car he slightly increased his speed, which he had somewhat slackened as he approached it, and proceeded straight ahead until he was about 100 feet north of the white pole, when he first saw the intestate on a bicycle about 2 feet from the westerly curb traveling slowly towards the north that he thereupon sounded his horn to give warning of his approach; that his car was proceeding about 14 feet from the westerly curb, and straight ahead, when the intestate suddenly, without warning, and without apparent reason, turned to the right in front of the defendant's automobile, striking the left front corner of the left front fender with the front of his bicycle, throwing both it and its rider to the ground, and causing the latter's injuries; that as soon as the intestate thus changed his course the defendant again sounded his horn, shouted, set his brakes, and did all that he possibly could to avoid the collision, which he claims to have shown was caused by the deceased's sudden change of course without warning, and without giving the defendant an opportunity to prevent its occurrence.

The witnesses were in agreement in saying that the highway, at the place of the accident, was clear of vehicles, and that there was nothing to interfere with a traveler's clear view of his surroundings or with his freedom of movement within its limits.

The complaint charged that the defendant was negligent (1) in operating his car "recklessly and at a rate of speed greater than was reasonable and proper, having regard to the width, traffic, and use of said North Main street"; and (2) in operating his car "at a rate of speed greater than was reasonable and proper in passing a street railway car which was about to stop on the same side of the car on which passengers are ordinarily received and discharged."

Touching the matter of the defendant's rate of speed and the bearing and effect of statutory regulations upon that subject, the court read to the jury section 11 of chapter 85, and the pertinent portions of section 12 and section 13 of chapter 85 of the Public Acts of 1911, as amended by chapter 204 of the Public Acts of 1913, and in the course of his comments upon them used the following language:

"Under these statutes, if you find that the rate of speed of the defendant at the time of the accident exceeded 25 miles an hour for one-eighth of a mile, then as the statute says that will be prima facie evidence that his speed was greater than was reasonable and proper, and in that case the burden would be on the defendant to show that such speed was reasonable and proper under the circumstances. You will see by this that the effect of this statute, making the excess of speed above 25 miles miles an hour prima facie evidence of an unreasonable or improper speed, does not necessarily mean that the defendant is liable in this notion, or that he was guilty of negligence in passing the car at the rate of speed that he did, if that was in excess of 25 miles an hour, but it is to cast upon the defendant the burden of proving such speed to be reasonable and proper. Of course, if his speed did not exceed 25 miles an hour, the statute does not apply at all. If it did exceed that rate at the time of the accident, you would have to find the speed unreasonable, unless the defendant proves by a fair preponderance of the evidence that the speed was not unreasonable under the circumstances."

Edward F. Cole and Clayton L. Klein, both of Waterbury, for appellant. Arthur B. O'Keefe, of New Haven, for appellee.

PRENTICE, C. J. (after stating the facts as above). The reasons of appeal assign as error the trial court's denial of the plaintiff's motion to set aside the verdict and grant a new trial, its refusal to charge, as requested, in three particulars, and several portions of the charge as given.

Two radically variant versions of the circumstances leading up to and attending the accident, which befell the plaintiff's intestate, were given by the...