Simenauskas v. Connecticut Co.

• Decision Date: 30 June 1925
• Citation: 102 Conn. 676,129 A. 790
• Court: Connecticut Supreme Court
• Parties: SIMENAUSKAS v. CONNECTICUT CO.

129 A. 790

102 Conn. 676

SIMENAUSKAS v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

June 30, 1925

Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.

Action by Joseph Simenauskas, administrator, against the Connecticut Company. From a judgment for defendant, plaintiff appeals. Error, and new trial ordered.

The complaint contains the following allegations:

" (3) Heretofore on or about the 5th day of June, 1923 the defendant, through its agents and servants, operated a trolley car on one of the highways in said Waterbury at a reckless and dangerous rate of speed, without due regard to the traffic on said highway, which is known as South Main street, in said Waterbury, carelessly and negligently, and when it knew that there was danger of collision and damage and then and there did willfully strike, collide with injure, and maim the plaintiff's intestate, causing the death of the said Albert Simenauskas. (4) The said plaintiff's intestate was in no wise guilty of negligence contributory to said collision."

At the trial the plaintiff claimed to have proved the following facts bearing on the charge of a willful striking: That the plaintiff's intestate, a boy seven years of age, was struck while he was sitting on one of the rails of the defendant's trolley track, and while he was asleep, or nearly so; that the striking occurred after dark, and at a point almost underneath a street arc light maintained by the city of Waterbury; that the trolley car was moving at the rate of about 23 miles an hour, and could be stopped in about 45 feet; that the motorman saw the plaintiff's intestate on the track from a considerable distance, and when about 50 yards away blew his whistle and clanged his gong, relying on these signals to scare the boy off the track, and continued to drive the car forward, though he could have avoided injuring the plaintiff's decedent by stopping the car. Defendant claimed that the car was proceeding at a reasonable rate of speed, in view of all the conditions; that the boy was sitting a short distance beyond the arc light, which prevented the motorman from seeing him until it was too late to stop the car; and that, as soon as the motorman did, or in the exercise of reasonable care could, see the boy, he did all that was possible by warning signal and by attempting to stop the car to avoid injuring the plaintiff's decedent.

Maurice A. Gruskay, of Waterbury, for appellant.

Walter E. Monagan and Walter F. Torrance, both of Waterbury, for appellee.

BEACH J. (after stating the facts as above).

The reasons of appeal pursued on the plaintiff's brief are for alleged errors in the charge of the court. The plaintiff claims that the court erred in submitting the question of contributory negligence to the jury, and that claim is based on the assertion that the sole cause of action alleged and claimed to have been proved was for a willful, as distinguished from a negligent, injury resulting in death, thereby precluding the defense of contributory negligence on the part of the plaintiff's decedent.

It is, however, apparent that the complaint explicitly alleges two distinct causes of action arising out of the same transaction; one based on defendant's negligence and lack of contributory negligence on the part of plaintiff's decedent, and the other upon a willful striking.

The claims of fact made by the parties as to negligence and contributory negligence called also for an instruction by the court on the doctrine of supervening negligence. This the court gave, and did not err in doing so.

In dealing with the allegation of a willful striking, the court softened the allegation by charging:

" The gist of the averments in so far as willfulness is charged is that defendant's motorman was guilty of a failure of duty in the matter of care as related to the safety of the plaintiff's intestate with consequent injuries to him; that is, he was guilty of actionable negligence."

Regarded as an interpretation of these averments of the complaint, this was erroneous, for the allegation is on its face one of a willful striking; i.e., battery.

The situation which developed, as the plaintiff's intestate failed to heed the warning signals while the car continued to approach him, was one which the trial court evidently regarded as calling for the application of the doctrine of supervening negligence rather than the law of battery. On this point the court charged as follows:

" If the plaintiff has established by a fair preponderance of the evidence that the defendant's motorman, after he saw and knew that the plaintiff's intestate, Albert, was on the track and in a position of danger, neglected to use every means in his power to stop the car, but continued on his way regardless of the position of the plaintiff's intestate, and so, in the language of the complaint, willfully struck and thereby killed the plaintiff's intestate, then the defendant would be liable for such injury, and your

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