Schmeiske v. Laubin

• Citation: 145 A. 890,109 Conn. 206
• Court: Supreme Court of Connecticut
• Decision Date: 30 April 1929
• Parties: SCHMEISKE v. LAUBIN ET AL.

145 A. 890

109 Conn. 206

SCHMEISKE v. LAUBIN ET AL.

Supreme Court of Errors of Connecticut.

April 30, 1929

Appeal from Superior Court, Hartford County; Allyn L. Brown, Judge.

Action by Paul R. Schmeiske, administrator, against Edward F. Laubin and another, to recover damages for the death of plaintiff's intestate, alleged to have been caused by defendants' negligence. Verdict and judgment for defendants, and plaintiff appeals. No error.

Jacob Schwolsky and Harry Schwolsky, both of Hartford, for appellant.

William D. Shew, of Hartford, for appellees.

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

BANKS J.

The plaintiff's intestate was struck by an automobile owned by one of the defendants and operated by the other, and received injuries which resulted in his death The jury could reasonably have found the following facts, as to which there was little if any dispute: On May 20, 1928, at about 7:30 p m., the defendant Clarence Laubin was driving an automobile in a southerly direction upon Bloomfield avenue in West Hartford, which was at that point a black, oiled macadam road 20 feet wide with a 5-foot gravel shoulder on each side. He was driving between 15 and 20 miles an hour, with the right wheels of the car about 3 feet from the west edge of the macadam. There were tall trees with overhanging branches on each side of the road. It had been raining just prior to the time of the accident and was dark and the headlights on the car were lighted. Plaintiff's intestate, dressed in a dark suit, was walking on the macadam road about 3 feet from the westerly edge in the same direction in which the car was proceeding and was struck by the right front fender of the car, receiving the injuries which caused his death. Though the operator of the car was keeping a careful lookout, he could not and did not see the plaintiff's intestate until just before he was struck.

The plaintiff appeals from the denial of his motion to set aside the verdict, claiming that, upon the practically undisputed facts, the operator of the car was negligent and the plaintiff's intestate free from contributory negligence as a matter of law. It is still true, as the plaintiff claims, that, in the absence of controlling legislation, a pedestrian has the right to walk, dressed in dark clothing, along a dark road, with his back to approaching traffic, but if he does so he is bound to exercise care proportionate to the danger inherent in such an undertaking. Obviously he is in a position of greater danger than if he were walking upon the shoulder of the road where automobiles would not be expected to be traveling, and he is bound to take some precautions for his own safety. Murphy v. Adams, 99 Conn. 632, 636, 122 A. 398. It does not appear that plaintiff's intestate took any. The plaintiff cannot justly complain because the question of the contributory negligence of his intestate was submitted to the jury as a question of fact.

The plaintiff contends that the operator of the car was negligent, as a matter of law, because of his failure to see plaintiff's intestate until an instant before he was struck, although the car was equipped with headlights, in compliance with the statute, throwing sufficient light ahead to show an object upon the roadway 200 feet distant. We passed upon that question adversely to the plaintiff's contention in Baldwin v. Norwalk, 96 Conn. 1, 112 A. 660. In answer to the claims there made that an automobile driver who, in the nighttime, collides with a substantial object on a straight highway, in the absence of any intervening objects which obscure his view ahead, should be presumed either to have seen the object or to have failed to see it because he did not have the lights required by statute, and that he was therefore guilty of negligence, we said (page 6 ): " We do not construe the statute so as to create this dilemma. The statute must be construed in the light of common knowledge. It is common knowledge that substantial objects because of their composition or coloring, and the coloring of the surface or object upon which they rest, are visible in greatly varying degrees when artificial light is thrown upon them. They are not necessarily clearly visible. The plaintiff claimed that he was keeping a reasonable lookout upon the road ahead of him, but, by reason of the dark color of the mass of debris and the lights and shadows, he did not see the pile of débris, of which he had no prior knowledge. It was a question for the jury to determine whether the plaintiff had...