Weimer v. Brock-hall Dairy Co.

• Decision Date: 30 November 1944
• Citation: Weimer v. Brock-hall Dairy Co., 131 Conn. 361, 40 A.2d 277 (Conn. 1944)
• Court: Connecticut Supreme Court
• Parties: WEIMER v. BROCK-HALL DAIRY CO. et al.

131 Conn. 361

40 A.2d 277

WEIMER

v.BROCK-HALL DAIRY CO. et al.

Supreme Court of Errors of Connecticut.

Nov. 30, 1944.

Appeal from Superior Cour, Fairfield County; Cornell, Judge.

Action by Reinhart Weimer against the Brock-Hall Dairy Company and others to recover damages for personal injuries alleged to have been caused by the negligence of defendants. The case was tried to a jury. Verdict and judgment for plaintiff, and defendants appeal.

No error.

J. Kenneth Bradley and Henry P. Lyons, both of Bridgeport, for appellants (defendants).

James C. Shannon and Charles A. Donadeo, both of Bridgeport, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

On the afternoon of May 3, 1941, the plaintiff was injured when the truck which he was operating northerly on Warren Street in Bridgeport collided with the defendant Dairy Company's truck as it was driven westerly on Prospect Street by the defendant Guilmette. The plaintiff had judgment, and the defendants have appealed, assigning error in the court's denial of their motion to set aside the verdict, in its charge to the jury, in its denial of the defendant's motions for a mistrial and in its failure to correct the finding. The defendants claim that the verdict should have been set aside because as a matter of law the plaintiff was contributorily negligent in failing to see the defendant company's truck at any time before the collision and yield the statutory right of way to it.

Warren Street runs north and south and Prospect Street east and west, the two streets intersecting each other substantially at right angles. Warren Street is thirty-three feet and Prospect Street thirty-one and two-tenths feet between curbs. Both Warren and Prospect Streets are straight and level in each direction for a distance of several hundred feet from the intersection. Adjoining the curb lines on both sides of each street are sidewalks, those on Warren Street being ten feet, and those on Prospect Street nine feet, wide. A wire fence enclosing a house lot on the southeasterly corner extends along the inside edge of the sidewalk on each street. Between the house and the corner of this fence are heavily foliaged lilac bushes. On Prospect Street twenty-one feet east from the easterly curb line of Warren Street and five and one-half feet from the wire fence at that point is a large elm tree, the northerly side of which is practically flush with the southerly curb of Prospect Street. The truck driven by the plaintiff was twenty-two feet long. As it approached Prospect Street he reduced its speed, shifting from fourth or high to second gear, and, when about twenty feet south of the southerly curb line of Prospect Street extended, applied his brakes lightly so that upon reaching it the truck was proceeding at from ten to twelve miles per hour. These facts are not in dispute.

The jury could properly have found these further facts: As the plaintiff approached the corner and got where the tree would let him see a reasonable distance to the east, he looked right and left along Prospect Street and saw no vehicle approaching from either direction. Thinking he could cross in safety, he released his brakes and continued straight through in second gear at about ten miles per hour until the collision occurred. The plaintiff at no time saw the defendants' truck prior to the impact. At the time the plaintiff looked easterly along Prospect Street as above related, the defendants' truck was approaching the intersection from the east, traveling just north of the center line of the street, at a speed of around forty miles per hour. The defendant driver first saw the plaintiff's truck when he was a few feet east of the intersection. He immediately applied his brakes, causing skid marks from a point fifteen feet east of the intersection, but his truck continued straight on without perceptible reduction of its speed until its right forward part struck the right rear wheel of the plaintiff's truck, when it had nearly passed out of the intersection, at a point south of the northerly curb line of Prospect Street extended. As a result of the collision, each truck was turned part way around and came to rest from thirty to forty feet north of the point of impact. The plaintiff's truck rolled over onto its left side and the plaintiff was injured. The defendant driver was thrown out and landed thirty-nine feet away.

It is true that a seeming conflict appears in the plaintiff's statements as to the point at which he looked. He first intimated that it was as he was ‘coming to Prospect Street’; second, that it was when he got to the south curb; and finally that it was when he got to where he ‘could see beyond the elm tree.’ He further testified in connection with his second statement, however, that ‘you have got to get the front of my truck past the curb before you look up and down, which I did.’ There was also evidence indicating that his seat was ten feet back from the front end of the truck. The evidence is thus sufficient to resolve the apparent conflict so that the suggested finding as to where the plaintiff looked is warranted. While the highest speed of the defendants' truck explicitly testified to was about thirty-five miles per hour, the evidence of the effect which the application of the brakes had, of the length of the skid marks resulting and of the force of the collision as shown by what happened to the trucks and their drivers was ample...