Romansky v. Cestaro

• Decision Date: 02 March 1929
• Citation: 109 Conn. 654,145 A. 156
• Court: Connecticut Supreme Court
• Parties: ROMANSKY v. CESTARO.

145 A. 156

109 Conn. 654

ROMANSKY v. CESTARO.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from Superior Court, New Haven County; Edward M. Yeomans Judge.

Action by Florence Romansky, by next friend, against George Cestaro to recover damages for personal injuries alleged to have been caused by defendant's negligence. The jury returned a verdict for defendant, and from the judgment thereon plaintiff appeals. No error.

Maltbie and Hinman, JJ., dissenting.

Patrick Healey and Mitchell G. Meyers, both of Waterbury, for appellant.

Richardson Bronson, of Waterbury, for appellee.

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

WHEELER, C.J.

The complaint alleges that the injuries of the plaintiff for which she seeks to recover were due to the negligence of defendant, " in that he wantonly, heedlessly and recklessly, in disregard of the rights of plaintiff and others, managed and operated said automobile so that he caused, permitted and allowed said automobile so to dash down said Robbins street, across said Watertown Road, through said private right of way of the Connecticut Company, over and down said river bank, and into said Naugatuck river, in that he drove said automobile at a high, dangerous and reckless rate of speed, in that he failed and neglected to have said automobile in proper repair, in proper operating condition and under proper control, in that the brakes, rear-end and other operating parts of said automobile were and for a long time had been insufficient, worn and defective, as he knew or should have known, in that said automobile was not provided with at least two systems of brakes, each system being independent of the other and of sufficient power to lock the wheels of said automobile while said automobile was in motion, all of which defendant knew or should have known."

The parties were not in dispute as to these facts: The plaintiff when injured, was riding in an automobile owned by defendant's father and then being operated by the defendant with his father's permission. The automobile was a secondhand open touring Ford car, purchased by the defendant's father about two or three months before the accident. On the afternoon of the day of the accident the plaintiff and six others went upon defendant's invitation for a drive with him in this car. The car was equipped with a foot brake and an emergency brake independent of it, and in addition the engine served as a brake by putting the car into low gear or into reverse. The foot brake, low gear, and reverse gear on this car worked through the driveshaft and are dependent upon it, and when that is broken none of these brakes operate.

On their return, and while proceeding down a hill at moderate speed, the driveshaft of the car suddenly broke. The defendant attempted to stop the car with the foot brake, and upon it failing to operate he attempted to put the car into low gear and then into reverse gear, but neither operated. He then applied the emergency brake and at first this checked the speed somewhat, but it soon gathered momentum again and continued at high speed down the hill. The defendant finally steered the car into a private right of way against a sand bank, which it passed over and against a tree, and stopped at the edge of a river, part of the car being in the water.

The disputable facts concerned in large part the condition of the braking equipment of the car and as to whether the defendant had been negligent in failing to have the braking equipment of the car in good order while the car was being operated on the highway at the time of the accident.

The jury returned a verdict for the defendant, which the plaintiff moved to have set aside. From the denial of this motion, and because of claimed errors in the charge, the plaintiff appeals. We will consider first these claimed errors.

The plaintiff relies upon the statute, which reads as follows: " Every motor vehicle, except a motorcycle or motorcycle and side car, while in use upon the highway, shall be provided with at least two systems of brakes, each system of which shall be independent from the other, and of sufficient power to lock the wheels of the motor vehicle while such motor vehicle is in motion." Public Acts of 1921, c. 400, § 40 (a). The purpose of the statute was to provide a means of stopping an automobile quickly in order to prevent injury to person or property. To accomplish this end the Legislature required the automobile to be equipped, not with one system of brakes, but two, each system operating independent of the other, and possessing sufficient power to lock the wheels of the car while it is in operation. The intent of the statute was to regulate motor vehicles which are to run on the highway. Primarily it was not intended to regulate the conduct of drivers.

The plaintiff assigned as error the failure of the court " to charge the jury that, if such automobile was not provided with two sets of brakes in compliance with the statute defendant was guilty of negligence per se, and that, if such condition was the proximate cause of the injury to plaintiff, defendant was liable. The court read the statute to the jury, but failed to instruct the jury that it required every automobile, while in use of the highway, to be equipped with two sets of brakes with sufficient power to lock its wheels while so in motion, and that a failure to so equip the automobile was negligence per se. There was no dispute that this car did have two such sets of brakes, so that the failure of the court to give this instruction, so far as it concerned the character of the brake equipment, did the plaintiff no harm. The plaintiff did not intend by this instruction to question the existence of the two sets of brakes on this car. What it did intend by the instruction was...