Rosa v. American Oil Co. Inc.

• Decision Date: 03 February 1943
• Citation: Rosa v. American Oil Co. Inc., 129 Conn. 585, 30 A.2d 385 (Conn. 1943)
• Court: Connecticut Supreme Court
• Parties: ROSA v. AMERICAN OIL CO., Inc., et al.

129 Conn. 585

30 A.2d 385

ROSA

v.AMERICAN OIL CO., Inc., et al.

Supreme Court of Errors of Connecticut.

Feb. 3, 1943.

Appeal from Superior Court, New Haven County; O'Sullivan, Judge.

Action by Corido Rosa against the American Oil Company, Inc., and another, for injuries allegedly caused by negligence, brought to Superior Court and tried to a jury, wherein verdict was rendered against both defendants.From a judgment setting aside the verdict against named defendant, plaintiff appeals, and from a judgment on a verdict against defendantCity Lumber Company, Inc., after filing of remittitur, City Lumber Company, Inc., appeals.

Error in remittitur only, and case remanded with directions.

M. J. Blumenfeld, of Hartford (DeLancey Pelgrift, of Hartford, on the brief), for appellantCity Lumber Co., Inc.

Bernard P. Kopkind and Clarence A. Hadden, both of New Haven (Daniel Pouzzner and William L. Hadden, both of New Haven, on the brief), for appellant and appellee.

Joseph B. Morse, of New Haven, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

The plaintiff is an employee of Porcelain Metals, Inc., engaged, at the time of his injury, in taking measurements in and around a building being constructed as a part of the gasoline service station in Stratford owned by the named defendant, hereinafter referred to as the oil company.The City Lumber Company, hereinafter referred to as the lumber company, was engaged in delivering materials to the job by truck.The service station was operating.Mechanics were working on the building.Materials of various kinds were scattered around.

The plaintiff and an employee of the oil company named Brennan were standing on a narrow walk in front of the office door.They were bending over engaged in their work.A four-foot iron bar lay on the walk near the plaintiff.It projected out from the curb over the driveway.The lumber company's truck drove into the station and stopped.The driver and helper got out and the latter moved lumber out of the doorway of the building under construction so that they could back in.The driver then got into the cab of the truck and started to back under the direction of the helper.When he had backed two or three feet the right front wheel struck the end of the bar and snapped the other end up so that it hit and broke the plaintiff's nose.The jury rendered a verdict against the oil company and the lumber company and both defendants moved to set it aside.The oil company's motion was granted.That of the lumber company was also granted unless the plaintiff filed a remittitur.This was filed and judgment was entered against the lumber company only.The latter appealed and the plaintiff also appealed because of the granting of the oil company's motion.

The lumber company claims that the truck driver had a right to assume that the oil company's premises were in a reasonably safe condition, that he was therefore not negligent in failing to see and to avoid striking the bar and that, in any event, the combination of circumstances was so unusual that he could not be found negligent.As pointed out by the plaintiff, the first statement, while true as a general proposition, fails to take account of the fact that building materials of all kinds were lying around and that construction work was going on.The assumption claimed by the defendant lumber company would be offset by another, that the driver would govern his conduct in the light of dangerous conditions likely to be present under such circumstances.Riley v. Consolidated R. Co., 82 Conn. 105, 108, 72 A. 562, 21 L.R.A.,N.S., 880.Due care is always predicated on the existing circumstances.Geoghegan v. G. Fox & Co., Inc., 104 Conn. 129, 138, 132 A. 408;Viretto v. Tricarico, 116 Conn. 718, 719, 165 A. 345.The peculiarity of the circumstances surrounding an accident may furnish support for a defendant's verdict but the trier of the fact is, in this state, given a wide latitude in drawing the inference of negligence.Ruerat v. Stevens, 113 Conn. 333, 155 A. 219;Savage v. St. Aeden's Church, 122 Conn. 343, 189 A. 599;Fallo v. New York, N. H. & H. R. Co., 123 Conn. 81, 84, 192 A. 712;White v. Herbst, 128 Conn. 659, 661, 25 A.2d 68.Under the evidence, a circle with a ten-foot radius would have included all of the actors.The driver could not see the bar from his position in the cab but he could have seen it when he got off the truck when he first arrived, and he was backing under the direction of his helper, another employee of the lumber company, who had moved various things out of the way of the truck and could have seen the danger.The finding that the lumber company was negligent was one which the jury could reasonably make.

The verdict against the oil company was not set aside on the ground that it could not have been found negligent but on the ground that there was a total failure of proof of the cause of action alleged.Fenton v. Mansfield, 82 Conn. 343, 348, 73 A. 770.The trial court based its ruling on the allegation of the complaint that the oil company was operating its station by...