Sullivan v. Krivitsky

• Decision Date: 06 March 1924
• Citation: Sullivan v. Krivitsky, 100 Conn. 508, 123 A. 847 (Conn. 1924)
• Court: Connecticut Supreme Court
• Parties: SULLIVAN v. KRIVITSKY.

123 A. 847

100 Conn. 508

SULLIVAN v. KRIVITSKY.

Supreme Court of Errors of Connecticut.

March 6, 1924

Appeal from Superior Court, New Haven County; L. P. Waldo Marvin Judge.

Action by Ada Sullivan against Harry Krivitsky.Judgment for defendant, and plaintiff appeals.Error and new trial ordered.

This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, brought to and tried to the jury before Marvin, J.

Thomas J. Ryan and Joseph J. Massa, both of New Haven, for appellant.

Claude B. Maxfield and Robert J. Woodruff, both of New Haven, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG JJ.

WHEELER, C.J.

The injuries for which the plaintiff sues occurred in a collision between the automobile in which the plaintiff was a passenger and the defendant's truck at the intersection of York and Oak streets, New Haven.The jury rendered its verdict in favor of the defendant, and the plaintiff appeals for errors in the charge of the court.The principal errors concern the charge with reference to the subjects of imputed negligence and concurrent negligence.The view reached by us in these matters makes it unnecessary to consider the other errors assigned.

The plaintiff offered evidence to prove that the defendant's negligence was the proximate cause of this accident, while the defendant offered evidence to prove that the negligence of the driver of the automobile was the proximate cause.No evidence appears to have been offered by either party that the plaintiff's own negligence essentially contributed to this accident, that is, that it so contributed as to have been a proximate or efficient cause of it.Since the negligence of the driver of the automobile cannot be imputed to the plaintiff--a passenger in the automobile--it follows that the only questions for the decision of the jury were as to whether the defendant's negligence was the proximate cause of the accident, and, if so, the damages suffered therefrom.The court instructed the jury as to the duty of each of the parties in approaching the intersection of these streets in accordance with our law.Neumann v. Apter,95 Conn. 695, 112 A. 350, 21 A.L.R. 970;Bettilyon v. Smith & Son, Inc.,96 Conn. 16, 112 A. 649.

If the evidence before the jury is correctly represented in the respective statements of the parties, the court should have instructed the jury that there was no evidence before them from which they could reasonably find that the negligence of the plaintiff essentially contributed to this accident, and, further, that in no event could the plaintiff be held responsible for the negligence of the driver of the automobile.In the earlier part of the charge the court did so charge the jury.Later in the charge the court instructed the jury that, if the negligence of the driver of the car in which the plaintiff rode was the cause of her injury, the verdict must be for the defendant.This was correct.The court was referring to the sole cause of the accident.The plaintiff requested that the court charge the jury:

" If you find that the defendant, Krivitsky, and the driver of the Buick car, Martin, were both guilty of negligence, the negligence of the driver of the Buick car, Martin, cannot be imputed to the plaintiff, and your verdict should then also be for the plaintiff."

The plaintiff was entitled to this request, with the added condition that if the jury found the negligence of Krivitsky and Martin was the proximate cause of the accident, etc. Weidlich v. N. Y., N.H. & H. R. R. Co., 93 Conn. 438, 445, 106 A. 323;Sampson v. Wilson,89 Conn. 707, 709, 96 A. 163;Bartram v. Sharon,71 Conn. 686, 688, 43 A. 143, 46 L.R.A. 144, 71 Am.St.Rep. 225.

The casual statement of the general principle of imputed negligence may not have been carried in mind by the jury so as to make applicable to the situation where they may have found the proximate cause of the accident to have been the concurring negligence of the drivers of the truck and automobile.Upon the subject of concurrent negligence the court charged:

" Now, where two causes operate concurrently to produce any

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