Sacks v. Connecticut Co.

• Decision Date: 21 May 1929
• Citation: 109 Conn. 221,146 A. 494
• Court: Connecticut Supreme Court
• Parties: SACKS v. CONNECTICUT CO.

146 A. 494

109 Conn. 221

SACKS v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

May 21, 1929

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

Action by Louis Sacks, administrator, against the Connecticut Company for damages for wrongful death. Verdict and judgment for defendant, and plaintiff appeals. Error, and new trial ordered.

Walter W. Smyth, John H. Cassidy, and Lawrence L. Lewis, all of Waterbury, for appellant.

William J. Larkin, Jr., of Waterbury, for appellee.

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

WHEELER, C.J.

The plaintiff offered evidence to prove: Watertown avenue in the city of Waterbury extends in a northerly and southerly direction, and is the main thoroughfare between the center of the city and the suburbs of Oakville and Watertown, and is much traveled by automobiles, particularly between the hours of 5 and 7 p. m. Carter avenue leads westerly from Watertown avenue to a part of Bunker Hill section. The west side of Watertown avenue was of cement surface, the easterly edge of which was about 2 feet from the westerly rail of the defendant's westerly or south-bound set of tracks, while 5 29/100 feet to the east of this set of tracks was the easterly or north-bound set of defendant's tracks. The rails of each track were 4 71/100 feet apart. The defendant had designated as a stopping place for both its north-bound and south-bound cars a point opposite the intersection of these two avenues, and indicated this by white bands painted on two poles, one on each side of the highway. It had also constructed at the white pole east of the north-bound track a platform about 4 2/3 feet wide and 35 feet long, made of cinders and dirt packed down hard. This was used by passengers alighting and about to take north-bound cars, and by passengers waiting for and about to take south-bound cars. The entrance for passengers to the south-bound car which struck the decedent was at the front end of the west side of the car, and about 2 feet from the cement surface of the highway. This car was a one-man car, entrance to which was not allowed on the left-hand front door, although the car was equipped with such a door. The defendant had also constructed a path of cinders and dirt from this platform across these tracks to the cement portion of the highway, which was used by passengers in going from the west side of the highway across these tracks to the platform and in crossing the tracks from the platform to the west side of the highway and to a point on the cinder path west of the west rail, from which point the passengers boarded the south-bound cars.

It was dangerous, particularly between these hours, for a prospective passenger for a south-bound car to stand in the highway opposite the white pole to await the southbound car, and this danger was increased when it was dark. A passenger standing at the curb on the westerly side of the highway would not be seen by the operators of southbound cars when it was dark. Watertown avenue was straight for 1,000 feet north of Carter avenue, and there were no physical objects to impair the view along the defendant's tracks north of the white pole for this distance. It was the custom of the prospective passengers coming from the west side of the highway to cross the tracks as described, and await on the platform the coming of the south-bound car. The defendant knew of the custom and of the danger to passengers standing on the highway west of the south-bound tracks. The designated white pole next north of that at the intersection of these a venues was at the intersection of Bunker Hill avenue, about 1,000 feet distant. At the time and place of the accident there was no grade, the rails were dry, and the conditions good. The operator of this car had worked on this line many times before; he knew that he might expect that passengers would board cars at this point.

The decedent owned a gasoline station at the intersection of Carter and Watertown avenues on the west side of Watertown avenue. An arc street light on a pole stood on the south side of this intersection. At the time of the accident the artificial light from the gasoline station and the arc light was sufficient to illuminate the highway, the two sets of tracks, the path across them, the platform, and the area near and surrounding the white pole on the easterly side of the tracks.

On December 3, 1927, at about 6:45 p. m., the decedent walked from her gasoline station to the white pole on the west side of the highway, and during a lull in the traffic crossed the cement portion of the highway over the defendant's tracks to the platform to await the south-bound car, which was then at Bunker Hill avenue. When the car left that stopping place, the decedent left the platform and stood between the rails of the two tracks, looked toward the approaching car, and signalled it to stop by lifting her right hand. The decedent relied upon the fact that the operator of the car would see her and her signal, and would bring the car to a stop at the white pole, and allow her to pass in front of the car so that she could enter at the right front end. The car struck the decedent when she was crossing in front of the same, and as she was between the rails of the south-bound track and 2 feet easterly of the west rail thereof. The operator of the car failed to sound the gong or bell, or give any signal of warning that he was not going to stop at this stopping point.

The operator saw, or should have seen, the decedent when she was giving this signal, had he been keeping a proper lookout, and he should have known that she was a prospective passenger on his car. The operator did not keep a proper lookout, and did not see the decedent until just an instant before the car struck her; she was then walking straight across the tracks, and 5 or 6 feet in front of the car, and 2 feet inside of the west rail of the south-bound car. He stopped the car in 36 feet, which was said to be a good stop. The street car was equipped with two headlights, a Golden Glow, which showed 100 feet ahead of the car and 2 feet either side thereof, and a city light which gave little light. The operator did not pull down the curtain back of him, provided by the defendant, although its rules required that it be down when the lights inside the car were lighted, and the failure to do this caused the view of the operator ahead to be impaired. Because of interference by headlights of oncoming autos on the highway, the operator could see only 8 feet ahead of him as he operated this car from Bunker Hill avenue where he made a stop to take on a passenger.

The defendant introduced no evidence, but claimed from the evidence introduced by the plaintiff that the defendant was not guilty of negligence, and that the decedent was guilty of contributory negligence.

The court instructed the jury that it was the duty of the motorman to have operated the car as a reasonably prudent man would have under the circumstances, to have kept a reasonable lookout, and to have seen what a reasonably prudent man would have seen, and that he knew that the place where the decedent was struck by the car was a stopping place for people on signal to get on or off the car; and that, if the motorman saw or should have seen the decedent, standing at the white pole, or about to cross the tracks, it was his duty to have reduced the speed of his car and brought it to a stop to avoid doing the decedent an injury.

The plaintiff requested the charge: " It was the duty of the operator to keep a proper lookout for persons in front of or at either side of the street car when in operation; to keep a proper lookout means to see a person within a reasonable distance in front of or to either side of the street car; it is for you to determine whether or not the operator, Connor, kept such a lookout, if you find that he did not and it was because of this failure that Dora Sacks was injured, then this failure is negligence on the part of the defendant." The plaintiff was entitled to this instruction. The motorman " must observe the streets adjacent to the tracks sufficiently to enable him to ascertain whether persons are approaching or are about to approach the track, and, if such persons are in danger of being struck by the car, he must do all that an ordinarily careful and prudent motorman would do to avoid * * * injury." Glettler v. Sheboygan L. P. & R. Co., 130 Wis. 137, 109 N.W. 973.

The request that, " It is the duty of a street railway company to exercise the highest degree of care in approaching a stopping place where prospective passengers are apt to be in order not to injure them," is not our rule of law. It was the duty of the motorman, leaving out for the present the element of the lights of the automobiles blinding him, in view of the liability of taking on passengers at this stopping point and of their custom, known to the company and to him, of their waiting for the car on the platform east of the north-bound track, and then upon the approach of the car recrossing the two tracks in front of the car and boarding the car at this crossing on the west side of the southbound tracks, to exercise great care, as the danger to prospective passengers was great. That would involve having the car under reasonable control in the light of the circumstances of danger, reducing its speed as it approached the stopping point, and keeping a sharp lookout for prospective passengers, so that, if necessary, the car might be brought to a stop before reaching the crossing. If the situation was as the motorman claimed it--an inability on his part, due to the lights from approaching automobiles, to see the decedent, upon the platform or her signal, if she did signal, or...