Rix v. Stone

• Decision Date: 13 December 1932
• Citation: 115 Conn. 658,163 A. 258
• Court: Connecticut Supreme Court
• Parties: RIX v. STONE.

163 A. 258

115 Conn. 658

RIX v. STONE.

Supreme Court of Errors of Connecticut.

December 13, 1932

Appeal from Superior Court, New London County: Patrick B O'Sullivan, Judge.

Action by Clyde S. Rix, Administrator of the estate of James C Huntley, deceased, against Dewey David Stone to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of defendant, brought to the superior court and tried to the jury. Verdict and judgment for plaintiff, and defendant appeals.

Error and new trial ordered.

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

Joseph F. Berry and Julius G. Day, Jr., both of Hartford, for appellant.

C. Hadlai Hull, of New London, for appellee.

BANKS J.

The plaintiff's decedent was killed by being struck by an automobile driven by the defendant as he was crossing the Boston Post road in the town of East Lyme. There was little dispute as to the material facts, and the jury could reasonably have found as follows: The road at the point of the accident was of about twenty feet wide and ran in a general northeasterly and southwesterly direction, but upon the trial in referring to the points of the compass was spoken of as running north and south. The defendant was driving north at a speed in excess of 40 miles an hour. The weather was clear, and the surface of the road dry, and at the speed at which he was travelling he could stop in a distance of 100 feet. The road was straight for a distance of more than 500 feet south of the point of collision, and there was nothing to obstruct the view in either direction. When defendant's car was upwards of 500 feet away, he saw plaintiff's decedent. Huntley, and a young man named Koss standing on the east shoulder of the road. Koss crossed the road, and Huntley stepped out upon the cement portion of the road and started to follow Koss across. Koss turned around and called to Huntley to go back, which he did. He then started again to cross, and was struck by the defendant's car when he was within a foot or two of the center of the road. Huntley was a man of advanced years, was afflicted with poor eyesight, and his hearing was somewhat impaired.

The defendant appeals from the denial of his motion to set aside the verdict and upon claimed errors in the charge. In passing upon the motion to set aside the verdict, the court stated that the only theory upon which the jury could have rendered its verdict was on the doctrine of supervening negligence, since the plaintiff's decedent was clearly negligent, but was of the opinion that there was evidence in the case justifying the application of that doctrine, and accordingly denied the motion. The court submitted to the jury the issue of the plaintiff's right to recover upon the application of the doctrine of supervening negligence, and the defendant contends that the facts were not such as to make the doctrine applicable, and that the jury could not reasonably have found the defendant guilty of supervening negligence.

The application of the doctrine presupposes that the plaintiff's decedent has been guilty of negligence. That he was negligent in attempting to cross the road under the circumstances disclosed by the evidence cannot seriously be questioned. The vital question in the case is whether there is any evidence in the case, viewed in the light most favorable to the plaintiff, which would justify a finding that it was the defendant's negligence, and not that of plaintiff's decedent, which was the proximate cause of the accident. A careful reading and analysis of the evidence has satisfied us that it furnishes no basis for a reasonable conclusion to that effect. The plaintiff produced four witnesses who were present at the scene of the accident. Two of these testified that they were standing at a filling station on the east side of the road about 140 to 150 feet south of the point where Huntley crossed. One of them had been putting gasoline in the car of the other who was just handing him a dollar bill in payment, when they both heard the " squeal" of brakes, and looked up and saw Huntley being thrown through the air. Neither of them testified that he saw either Huntley or the defendant's car immediately prior to the accident, nor did either of them give any testimony which directly threw any light upon the question as to the location of defendant's car upon the highway when Huntley started to cross the street. The other two witnesses produced by the plaintiff, who were at the scene of the accident, were Morris Koss, who, Prior to the accident, was in the company of Huntley on the east side or the road, and his cousin L. Morris Koss, who was standing in front of a tilling station directly opposite on the west side of the road. Morris Koss testified that he was standing on the east side of the road talking with Huntley, that he walked across the road, and, after he had gotten across, saw defendant's car coming, and yelled to Huntley, who had not started to cross at the same time, to stay on the other side of the street. Upon his direct examination this witness testified that Huntley, who had then started to cross, kept on across the road, and was struck when he was about a food cast of the center line of the road. Upon his cross...