Worden v. Anthony

• Decision Date: 12 December 1924
• Citation: 126 A. 919,101 Conn. 579
• Court: Connecticut Supreme Court
• Parties: WORDEN v. ANTHONY.

126 A. 919

101 Conn. 579

WORDEN v. ANTHONY.

Supreme Court of Errors of Connecticut.

December 12, 1924

Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.

Action by J. Tracy Worden, administrator, against Robert N. Anthony to recover damages for injuries to his intestate causing his death. Verdict for defendant was set aside, and defendant appeals. Error, and judgment directed.

John K. Keating, of Stamford, for appellant.

Robert R. Rosan, of Bridgeport, for appellee.

CURTIS, J.

The court, in its memorandum setting aside the verdict, states that it so acted because in its opinion, under the evidence the jury could not reasonably have found that the defendant was free from negligence, which was a proximate cause of the plaintiff's injury, and also because the jury could not reasonably have found that such negligence as the intestate was guilty of was a proximate cause of his injury, hence the verdict for the defendant could not reasonably have been rendered by the jury. The evidential facts of the case are not seriously in controversy, but the contention between the parties arises on the legal consequences arising from the facts.

The intestate was a boy 16 years and 4 months of age, a student in a high school. He was a large, tall boy for his age, of good build. On July 9, 1923, while he was on vacation, he went, about 2 o'clock p. m. into a coal yard at Cos Cob near his home. An automobile coal truck, owned by Edward Tammany, loaded with 3 tons of coal in bags, stood ready for delivery in Stamford. The truck was a 2 1/2-ton Federal truck. It had a large, heavy dump body 6 feet 2 inches in width, which projected out over the wheels, and the coal bags were piled two high over the body of the truck. The front end of the truck was occupied by a cab with the driver's seat therein. The boy invited himself to go with the load of coal for a ride, and got into the extreme right of the driver's seat, and another boy 16 years old sat in the middle, and the driver, Tammany, sat at the extreme left of the seat. The truck started to go east toward Stamford, and coming out of Cos Cob began to go up a steep, long hill on the Boston post road, known as " Allen's Hill." The post road at this point is a heavily traveled road. The road is of warrenite, about 16 feet wide. When the truck was nearly at the top of the hill, the engine began to act badly as if not receiving enough gasoline. The intestate, upon his own motion, got off the truck and, passing around in front of the slowly moving truck, got up and lay on the left fender and tried with his light hand to manipulate the air valve. There was no necessity for his doing so. He lay partly on his left side and stomach with his back to the line of traffic. The fender was 10 1/2 inches wide, and from its front it curved over the front wheel 4 feet and 3 inches, to the point where it joined the short running board, which was 2 feet long and had on its rear part a tool box 16 inches long and 10 1/2 inches high, the other 8 inches was used as a step into the cab. On account of the height and size of the boy, some part of his body protruded beyond the outside line of the fender, and above the line of the fender.

As soon as the driver saw the boy on the fender, he told him to get back into the cab or he would be hit by some passing vehicle. The boy refused to move. He continued in this position while the truck went ahead 880 feet, at a speed of about 10 miles per hour. The defendant's empty Ford truck, driven by his employee, came up behind the coal truck as it reached the top of Allen's hill. As the coal truck started down the opposite slope, the Ford came out from behind it and started to pass it on the left. When the Ford driver got well abreast of the coal truck, he saw a car coming toward him from the opposite direction. He judged that he had ample time and space to pass in front of the coal truck and out of the path of the oncoming car, and did so. After he came out from behind the wide body of the coal truck, he had his attention largely directed toward and occupied with the oncoming car, in whose path he was, and testified that he did not see the boy on the fender and did not know he was there. He passed to the front of the coal truck and went on his way without knowing that anything had happened. The trucks did not come into severe contact, but, in passing, the Ford seems to have come slightly in contact with the coal truck and some part of the protruding or extended body of the boy, brushed him up over the front fender, on which he lay, causing him to fall down under the coal truck, and its right rear wheel ran over him and killed him.

The defendant does not seriously urge that the court did not properly rule that the jury could not reasonably have found that his driver was not guilty of negligence, which was a proximate cause of the injury. It is unnecessary to discuss that feature of the case.

The plaintiff claims that the jury could not reasonably have found that the plaintiff's intestate was guilty of any negligence which was a proximate cause of his injury. He claims that if his intestate was negligent in taking the position on the fender on this much traveled road, yet such negligence was not a proximate cause of the accident but merely a condition.

The defendant claims that under the evidence the jury could reasonably have found that the intestate was negligent, and that such negligence was a proximate cause of the accident and therefore that the jury properly rendered its verdict for the defendant. In dealing with the claim that certain conduct of a party was a " condition" and not a proximate cause of an accident, caution...