Tracy v. Welch

• Decision Date: 17 April 1929
• Citation: 109 Conn. 144,145 A. 662
• Court: Connecticut Supreme Court
• Parties: TRACY v. WELCH. RILEY v. WELCH.

145 A. 662

109 Conn. 144

TRACY v. WELCH.

RILEY v. WELCH.

Supreme Court of Errors of Connecticut.

April 17, 1929

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

Actions by William E. Tracy and by James H. Riley, administrators against Ella Welch, administratrix, to recover damages for the deaths of plaintiffs' intestates, alleged to have been caused by the negligence of defendant's intestate. Judgment for defendant after trial to the court, and plaintiffs appeal. No error.

Edwin M. Ryan, of Hartford, for appellant Tracy.

S Polk Waskowitz and Edward S. Pomeranz, both of Hartford, for appellant Riley.

Edward J. Myers, of Hartford, for appellee.

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

MALTBIE, J.

In these two actions, tried together, the court has found the following facts: On March 28, 1927, at about 3:30 a. m., the intestates of the two plaintiffs and the defendant's intestate were riding in an automobile owned by the latter, which was proceeding northerly upon the Cheshire turnpike. The automobile left the paved portion of the highway, struck the fence at the side of the road and a telegraph pole, and all three men were hurled from it and instantly killed. No one saw the accident. The trial court has found that the automobile was being driven at the time of the accident by the defendant's intestate; that it was proceeding and for three-quarters of a mile before had been proceeding at a speed of about 60 miles per hour; that it was being driven negligently, carelessly, recklessly, and at a dangerous rate of speed; that this negligence was " the proximate cause" of the accident; that it is not known how the occupants of the car other than the defendant's intestate were seated; and that there was no evidence that plaintiffs' intestates were free from contributory negligence. The court stated as its conclusions that there was " no proof" that the plaintiffs' intestates were free from contributory negligence, that the defendant's intestate was guilty of negligence which was " a proximate cause" of the death of plaintiffs' intestates, and that there is no presumption which will take the place of evidence that they were in the exercise of due care. Both the plaintiffs and the defendant have appealed.

In view of the whole finding we cannot read the statement that the negligence of the defendant's intestate was " the proximate cause" of the death of plaintiffs' intestates as relegating any contributory negligence on their part to a secondary position, but we interpret it as meaning no more than is expressly stated in the conclusion that such negligence was " a proximate cause" of those deaths.

The plaintiffs seek to have the finding that it was not known how the plaintiffs' intestates were seated in the car stricken out and to substitute a statement that Riley was riding upon the front seat and Sheehy in the rear; but while some inferences might be drawn from the circumstances of the accident tending to support the plaintiffs' claim and two witnesses gave their opinion that Sheehy was sitting upon the rear seat, no such compelling weight can be given to these circumstances or opinions that we can hold that the trial court should have so found. The other changes sought consist of the effort to substitute, in place of the court's finding that there was no evidence that the plaintiffs' intestates were free from contributory negligence, certain paragraphs in the plaintiffs' draft finding as follows: (22) That a short time before the accident another automobile passed the one in which they were riding, and that there was no noise or shouting in the latter; (23) that the accident occurred on a straight highway, with no intersecting highways near, and that there were no dangers that would call for extraordinary watchfulness on the part of the occupants of the car or that required them to look out for threatening or possible dangers; and (24) that the plaintiffs' intestates were not guilty of contributory negligence which materially or essentially contributed to the accident. The statement contained in paragraph 22 was testified to by an apparently credible witness, was undisputed, and should be added to the finding. The statement in paragraph 23 that the accident occurred upon a straight highway is shown to be true by the exhibits in evidence, at least as regards a distance of 1,700 feet north of the scene of the accident, and this fact should also be added; but the other statements in this paragraph do not seem to be supported by any evidence. The effort to substitute a finding that the plaintiffs' intestates were not guilty of contributory negligence for the one made by the court, that there was no evidence that they were in the exercise of due care, presents the crux of the case.

As we have repeatedly pointed out, the duty which rests upon a guest in an automobile to exercise reasonable care is a very limited one, and he need ordinarily give no heed to the manner in which the car is being operated; but when he knows that the driver is operating it negligently, or his negligent conduct is so apparent that he ought to have known it, then the duty to exercise reasonable care resting upon him may require action upon his part. Clarke v Connecticut Co., 83 Conn. 219, 223, 76 A. 523; Duffy v. Bishop Co., 99 Conn. 573, 578, 122 A. 121; Marks v. Dorkin, 105 Conn. 521, 136 A. 83. The court has found that at the time of the accident and for at least...