Kligerman v. Rosenstein , 128 Conn. 455 ( 1942 )

An automobile owned by one defendant and operated by the other killed the deceased, a woman, who was crossing a city street in the daytime. The driver did not see her until after she was struck, and there were no eyewitnesses of the accident. The court concluded that the plaintiff had failed to prove by a fair preponderance of the evidence that the defendants were guilty of any negligence alleged in the complaint which was a proximate cause of the injuries and death, and entered judgment for them. The principal question upon this appeal is whether upon the subordinate facts found the defendant driver was guilty of negligence as a matter of law in failing to keep a proper lookout, and in striking the deceased.

The finding, in which we can make no material corrections, states the following facts: The defendant driver was operating his wife's car, as her agent, in a westerly direction on Lamberton Street in New Haven, approaching its intersection with Kimberly Avenue, at about 4 o'clock in the afternoon of December 23, 1940. It is a busy intersection, in a business district. Kimberly Avenue runs in a general northerly and southerly direction and is fifty feet wide between curbs. On it are two sets of car tracks, and its center is approximately half way between the inner rails of the two tracks. On the south side of Lamberton Street is a sidewalk which, east of Kimberly Avenue, is fourteen feet wide and west of Kimberly Avenue is twelve and one-half feet wide, but there are no visible lines of a crosswalk on Kimberly Avenue. The weather was bright and clear and the roads were dry and free from snow or ice. There was an overhead traffic light in the middle of the intersection. As the defendant driver reached the intersection the light was red as to him and he stopped on Lamberton Street. When it changed to green he started his car, turned left into Kimberly Avenue, keeping to the right of the intersection of the center lines of the streets, and proceeded south on Kimberly Avenue at a speed of about ten to fifteen miles an hour and in the first gear. He did not see the deceased until he felt a bump. He then looked back, saw her lying in the middle of Kimberly Avenue twenty-one feet south of the southerly curb line of Lamberton Street projected across the avenue, and stopped his car. He had given no signal by horn or otherwise before the accident. Both the front and rear left fenders struck the deceased. No one knows whether at the time she was struck she was walking east or whether, having crossed to the east side of Kimberly Avenue, she was returning to the west side, or whether, having reached the center of Kimberly Avenue, she stopped or moved back and forth. The trial court based its decision solely upon the conclusion that the foregoing facts were insufficient to prove that the defendant driver was guilty of any negligent conduct within the allegations of the complaint which was a proximate cause of the injuries to and death of the deceased.

We cannot hold that the trial court was in error in this conclusion. To take an illustration which is suggested in the evidence printed in connection with the assignments of error in the finding: It might have been that another automobile proceeding northerly on Kimberly Avenue was coming to a stop at the south line of the sidewalk on the south side of Lamberton Street projected across the avenue and on the track of northbound cars, and that as it approached, the deceased, finding herself, as she thought, in or close to the course it would take, suddenly stopped or jumped away from it and so brought about the collision with the fenders of the defendant driver's car. Again, a car proceeding northerly on Kimberly Avenue and stopping under such circumstances might will have interfered with the opportunity of the defendant driver to see the deceased until he had crossed in front of it. These are but illustrations of situations which might have resulted in the death of the deceased under circumstances such that liability would not be imposed upon the defendants.

The facts proven were insufficient to establish that the deceased came into a position of peril from the defendants' car under such circumstances that we can hold that as matter of law the defendant driver should have seen her or, seeing her, should, in the exercise of reasonable care, have avoided striking her. Morse v. Consolidated Ry. Co., 81 Conn. 395, 398, 71 A. 553; Simauskas v. Connecticut Co., 102 Conn. 61, 65,127 A. 918; Farquhar v. Larson, 121 Conn. 709, 710,186 A. 498. The cases just cited involved situations where the evidence was held insufficient to sustain a conclusion that the defendant was negligent. Previous to the enactment of the statute placing the burden of proof of contributory negligence upon the defendant, we were confronted with a similar situation with reference to that issue and we held that where there was no direct evidence as to the immediate circumstances of the accident and no basis for reasonable inferences which would justify a conclusion that the plaintiff was not negligent, he could not prevail; that the issue must be removed from the field of speculation and the evidence support a conclusion that it was at least reasonably probable that the plaintiff was not guilty of contributory negligence. Mullen v. Mohican Co., 97 Conn. 97, 100, 115 A. 685; Kotler v. Lalley,112 Conn. 86, 90, 151 A. 433; Oddwycz v. Connecticut Co., 113 Conn. 648, 156 A. 824; Tynan v. Lassen,113 Conn. 789, 790, 156 A. 861; Dumochel v. Becce,119 Conn. 175, 177, 175 A. 569. In this case we cannot hold that there were any inferences which the trial court was bound to draw which would establish the negligence of the defendants and hence cannot disturb its conclusion that the plaintiff failed to prove that negligence.

There is no error.

In this opinion AVERY, BROWN and JENNINGS, Js., concurred.