Baldwin v. City of Norwalk ( 1921 )

The defendant's first claim of error is the denial by the trial court of its motion to set aside the verdict as against the evidence. The main ground upon which this claim is based is that the plaintiff was guilty of contributory negligence because, the defendant claims, the evidence establishes that the conditions of light on the night in question were either sufficient to enable the plaintiff to observe a substantial object on the highway, or else his own lights were insufficient.

The motor-vehicle law makes the following provision regarding lights (General Statutes, § 1535(d)):

"Wherever there is not sufficient light within the limits of the traveled portion of the highway to make all vehicles, persons or substantial objects clearly visible within a distance of at least one hundred and fifty feet, the forward lights which a motor vehicle is required to display shall, when the vehicle is in motion, throw sufficient light ahead to show any person, vehicle or substantial object upon the roadway straight ahead of the motor vehicle for a distance of at least one hundred and fifty feet."

The defendant claims that under this statute an automobile driver who, in the night time, collides with a substantial object on a straight highway, in the absence of any intervening vehicles or objects which obscure or prevent a view ahead, should be presumed either to have seen the object or to have failed to see the object because he did not have the forward lights required by statute, and that he was therefore guilty of contributory negligence.

The defendant claims that under the evidence Main Street was a straight highway, and the frozen accumulation of mud and debris which the plaintiff claimed to have proved to exist upon the highway on the night in question was a substantial object straight ahead of the plaintiff as he drove northerly on Main Street, and that under the evidence there were no intervening vehicles or other objects to prevent or obscure the plaintiff's view ahead, and therefore the plaintiff failed to see a substantial object straight ahead of him made clearly visible by his lights, or he did not have lights of the illuminating power required by statute and hence failed to see the object, and was in either case guilty of contributory negligence and barred a recovery.

We do not construe the statute so as to create this dilemma. The statute must be construed in the light of common knowledge. It is common knowledge that substantial objects because of their composition or coloring, and the coloring of the surface or object upon which they rest, are visible in greatly varying degrees when artificial light is thrown upon them. They are not necessarily clearly visible.

The plaintiff claimed that he was keeping a reasonable lookout upon the road ahead of him, but, by reason of the dark color of the mass of debris and the lights and shadows, he did not see the pile of debris of which he had no prior knowledge. It was a question for the jury to determine whether the plaintiff had at the time the lights required by statute, and whether a failure to have such lights was a proximate cause of the accident, and whether, if he had such lights, he was in the exercise of due care in failing to see and avoid the pile of debris under the surrounding circumstances on the night in question.

As to this claim and the other claims of the defendant under this reason of appeal, we are satisfied that under the conflicting evidence the jury could have reasonably found the issues for the plaintiff.

The charge of the court objected to in the first reason of appeal was proper and adequate. Under the evidence the jury could have found that the plaintiff's automobile collided with a pile of mud and debris, made compact and hard by the freezing of the moisture in it, or that it collided with a mass of snow and ice; in the latter event, the jury were correctly told that the plaintiff could not recover because of his failure to give the ten-day notice required in case of injury arising from a highway defect caused by snow or ice.

The reference in the charge to the provision of General Statutes, § 58, to the effect that executive officers of municipalities may exceed the appropriations for the necessary repair of roads, without penalty, was not improper in the connection in which it was made.

Evidence had been introduced as to the appropriation for snow removal made by the city, and the jury, by suggestion of counsel or upon their own motion, were liable to think the duty of the city to keep its streets in a reasonably safe condition for travel was affected by the appropriation made.

The charge as to the duty of the city in regard to snow and ice removal became immaterial when the jury found that the obstruction was not composed of snow and ice, as they must have done under the charge.

The court charged as follows: "Mr. Minor, the superintendent of streets of the defendant, described this pile as 95% snow and ice covered on the top with muck and street sweepings, and says that the bottom of the pile was ice, and that the whole of the mass was due to accretions from several storms, that the sun had melted more or less, and then again became impacted by freezing. He further said that the pile would not, in his judgment, impede travel, and were it there today (meaning the day on which he testified) he would not remove it. It throws some light on his testimony in this regard to consider the fact that the pile was removed on his orders the next day. . . . You are, however, gentlemen, entitled to consider the fact that it was removed the next day, and on his orders, when he said he would not, on the day of the trial, remove it, had it been there, as affecting his judgment and his credibility, and his freedom from bias."

The defendant claims that from this statement the jury would consider that the removal of the obstruction by the superintendent of streets the day after the accident was an admission of its dangerous character. This objection is not well taken, for the court strictly limited that fact to its effect in discrediting the testimony of the superintendent, and no question is made that this evidence was not properly before the jury.

The court charged as follows: "In rendering your verdict the jury will answer the following questions: (1) Was the pile or mass of substance with which the plaintiff's car collided composed predominantly of ice and frozen snow colored by dirt or mud, and assuming its form and color for that reason? (2) Was said pile or mass predominantly composed of sand or mud held in mass by freezing of water contained in its composition? If, upon this question of the composition of this pile, you find in favor of the defendant, you will answer the first question ``Yes,' and the second question, ``No.' If, on the other hand, you find for the plaintiff you will answer the first question ``No,' and the second question ``Yes.'"

The defendant claims that the instruction as to answering these questions directed the jury to answer the questions in accord with the verdict they might render, instead of in accord with the facts as to the composition of the pile as found by the jury.

We are satisfied that the jury would have understood from the charge that they were to answer the questions in accord with their finding whether the composition of the pile was as claimed by the plaintiff or whether its composition was as claimed by the defendant.

The method used by the court in presenting the interrogatories was unfortunate. It is the correct practice to require interrogatories which the court submits to the jury to be answered directly. Longstean v. McCaffrey's Sons, 95 Conn. 486, 111 A. 788.

As to the ninth, tenth, and eleventh assignments of error, the court in its charge correctly and adequately covered the matter to which the requests of the defendant related.

The defendant's thirteenth assignment of error is that the court erred in denying the request of the defendant for the submission of interrogatories to the jury. This matter was within the discretion of the court. "It is within the reasonable discretion of the presiding judge to require or to refuse to require the jury to answer pertinent interrogatories, as the proper administration of justice may require." Freedman v. New York, N. H. H.R. Co., 81 Conn. 601, 612,71 A. 901; Kornblau v. McDermant, 90 Conn. 624,98 A. 587.

As to the remaining assignments of error, relating to the charge, requests to charge, or the conduct of the trial judge, they are so obviously not well taken or so immaterial as not to justify discussion.

The defendant further claims that the trial court erred in not granting its motion to set aside the verdict or grant a new trial because the verdict was excessive.

The following facts are claimed to have been proven by the plaintiff: In February, 1918, the plaintiff was sixty-three years of age and a man of unusual vigor and activity; he is married, and requires the net income of $2,000, which sum he was then earning, for the reasonable support of his family. As a result of his injuries the plaintiff suffered a severe scalp wound and many bruises and contusions upon his body, and also a fracture of the pelvis in the region of the ascetabulum. As a result of said fracture of the pelvis, the left leg of the plaintiff was shortened at the hip, and he has so far suffered from loss of motion in the left leg that he has been and still is unable to move about without the aid of a cane and crutch, and is unable to drive an automobile. The plaintiff is, and for a great many years has been, a physician in good standing residing in the town of Norwalk and practising his profession in said Norwalk and vicinity. By reason of his profession of medicine, the plaintiff had, prior to said injuries, received a net income of about $2,000 per year. The plaintiff, as a result of the injuries suffered as aforesaid, was unable to practice his profession until about the month of May following the injuries, when he was able to attend to a few office calls, and since that time, because of his inability to get about, the plaintiff's practice has been limited to office calls. Because of said injuries and the subsequent inability to attend to the practice of his profession, his practice has been greatly diminished, and since said injuries his income from his practice has not exceeded $500 in any twelve months. The plaintiff's injuries and disabilities are permanent, and his ability to pursue the practice of medicine and to keep and maintain the patronage of his patients has been greatly and permanently impaired, and there is no other labor or calling in which the plaintiff will be able to earn a livelihood. The injuries suffered by the plaintiff as aforesaid were exceedingly painful, and both the injuries and the treatment for the same caused the plaintiff to suffer great mental and bodily pain and anguish.

The plaintiff's expectation of life at sixty-three years of age was about 12.81 years.

The sum of $13,000 at six per cent would procure the plaintiff an annuity of about $1,500 for twelve and a half years. Taking into consideration compensation for pain and suffering and discomfort during his life, we do not find that the verdict is so excessive as to indicate that the jury were controlled by passion, prejudice, partiality or corruption.

There is no error.

In this opinion the other judges concurred.