Salemme v. Mulloy

• Decision Date: 27 July 1923
• Citation: 99 Conn. 474,121 A. 870
• Court: Connecticut Supreme Court
• Parties: SALEMME v. MULLOY.

121 A. 870

99 Conn. 474

SALEMME v. MULLOY.

Supreme Court of Errors of Connecticut.

July 27, 1923

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Action by Alesandro Salemme, administrator of the estate of Antimo Salemme, deceased, against Daniel C. Mulloy. Judgment for defendant, and plaintiff appeals. No error.

Upon the trial the plaintiff claimed to have proved the following facts: The decedent Antimo Salemme, on the evening of November 8, 1920, was a passenger in an automobile of the defendant by his invitation. The car was a Ford runabout with one seat and a top, which was then up over the seat, and a box body back of the seat about 4 feet wide and 5 feet in length, having straight sides about 6 inches high. The car was a left-hand drive and was equipped with proper lights and brakes, and was going westerly on the Milford turnpike and was easterly of the Race Brook road. The evening was clear and dark. Riding upon the car at the invitation of the defendant at the time of the accident were the plaintiff's decedent, aged 18 years, his brother Charles Salemme, aged 21 years, and their two cousins, Joseph Reinzo, aged 21 years and Charles Reinzo, aged 22, all farmers. Joseph Reinzo was sitting on the seat at the right of the defendant, Charles Reinzo was standing on the running board at the left side of the machine, and the two Salemmes were standing on the opposite running board, Charles being nearest the front of the car. Charles Salemme was holding onto the upright of the windshield and glass with his right hand, and the top of the seat with the other hand. Antimo Salemme was holding onto the edge of the body or door with his right hand, and the top upright or top of body or seat with the other. Charles had his left arm around Antimo. The decedent was in vigorous health, strong and active. The defendant, at the time the young men boarded the car, was intoxicated and drove his car in such a zigzag manner as to direction that it was apparent to the decedent and to at least one of the other passengers that he was intoxicated. The road westerly from where the decedent boarded the car was practically straight with slight changes of grade, and was of concrete surface of about 16 1/2 feet in width with level graveled shoulders on each side of 3 or 4 feet. Vehicles approaching from the west could be seen more than a half mile away. While these young men were on the car it ran by estimation from 12 to 32 miles an hour and did not stop. After leaving the place where the decedent and his companions got on the car, they rode westerly along the turnpike to a point about 300 feet easterly of the intersection of the Race Brook road, where the defendant's car collided with a truck standing headed in the same direction. The truck with which defendant's car collided was a Mack with a rack body and was about 8 feet wide, and was standing on the northerly side substantially parallel with the roadway, with its right wheels off the concrete surface and its left wheels on the concrete surface about 1 1/2 feet from its northerly edge; its rear light, a red lantern, was lighted and plainly visible from the rear for a distance of two city blocks or more. The decedent either jumped or was thrown from the running board of defendant's car, striking the corner of the truck, thereby receiving the injuries from which he died. There was no traffic in either direction at or about the time of the collision. One or more of the decedent's companions asked the defendant to stop and let them alight because of his intoxication. The defendant refused.

The defendant claimed to have proved facts as follows:

On the evening in question he was driving his Ford runabout on the Milford turnpike with three bags of meal in the rear box; the top was up over the seat and the right-hand curtain was up. He was signaled to stop by some one, and saw at the roadside some one he knew, and he invited him to ride. He also saw in the darkness another person and later found that this person was riding on the left running board. He did not see or know that two others, the decedent and his brother had got on the right-hand running board or were riding there and he did not know it before the collision. There was ample room in the box for the persons standing on the running boards. The defendant was not intoxicated and had not been drinking and drove his car at from 12 to 15 miles an hour and was not requested to stop or permit any other to drive the car. He saw the rear light of the Mack truck ahead when 150 feet away, and saw the truck standing with about 4 1/2 feet of it on the concrete. As the defendant approached the truck he slowed down the speed of his car to about 10 miles an hour. It was necessary for him to turn to the left in order to pass by the truck standing as described. Just as he was about passing the truck he was blinded by the glaring headlights of a car which was coming toward him. As he turned to the left and was passing the truck, the body of the plaintiff's intestate struck the left rear corner of the truck and caused the car driven by the defendant to swerve suddenly to the right so that the front end of the Ford car ran under the middle of the big truck, between the front and rear axles. The defendant had turned far enough out to avoid striking the truck and would have avoided striking the same had it not been that the body of the plaintiff's intestate came in contact with the left rear corner of the truck as above described, causing the Ford car to swerve into the truck as above recited. The blow ruptured the liver of the decedent and caused his death.

Milton C. Isbell, of Ansonia, and Charles G. Roth, of New Haven, for appellant.

Walter J. Walsh and Edward P. O'Meara, both of New Haven, for appellee.

CURTIS, J. (after stating the facts as above).

The plaintiff moved that the verdict be set aside as against the weight of the evidence. An examination of the evidence discloses that the jury could reason ably have found the issues for the defend ant.

The reasons of appeal relate to the refusal of the court to charge as requested and to claimed errors in the charge given. Under the facts claimed to have been proved, the decedent might have been found to have stood in one of three relations to the defendant: (1) As a passenger riding by invitation; (2) as a trespasser on the car without the knowledge of the defendant; (3) as a trespasser on the car, with the defendant's knowledge.

The plaintiff in his fifth reason of appeal claims that the court erred in charging as follows:

" Even though Tony got upon the defendant's car as a trespasser, that is wrongfully and without his permission expressed or implied, as the defendant claims, still if the defendant knew of his presence in a place of danger it was his duty to use ordinary care--that is, the care of an ordinarily prudent person--to avoid injuring him. He was not bound to keep a lookout for trespassers on his car, or to keep his car in a safe condition for the carrying of trespassers. But, if he knew he was there and in a position of peril, he was bound to use reasonable care not to increase the hazard. If, on the other hand, the defendant did not know of Tony's presence on the running board, then he owed him no duty except to refrain from willful injury or such gross and wanton recklessness and negligence as is the equivalent of willful conduct. If you should find that the defendant knew that Tony and his brother got on the running

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