Mezzi v. Taylor ( 1923 )

The significant portions of the complaint are, in substance, that the plaintiff's intestate was standing upon a main highway between Wallingford and North Haven at a point about opposite a white pole where trolley-cars were accustomed to stop to take on and discharge passengers, and about fifteen feet from the northerly side of a crossing known as Tolles Crossing, over which both trolley and steam tracks were laid, and that said tracks were upon the extreme westerly side of the highway; that at that time and place a trolley-car was approaching said crossing, which car the deceased and his companion had signaled to stop for them to board the car, and that while the plaintiff's intestate was thus standing on the highway, the defendant, driving his automobile southerly on the same highway, struck the plaintiff's intestate and threw him forward under the wheels of the approaching trolley-car, and in such close proximity to its wheels that the motorman of the car was unable immediately to stop the car, and that the left wheel of the car went over the arm and upon the chest of the deceased, causing injuries resulting in his instant death.

All of these facts the jury could reasonably have found true upon the evidence offered in the case, and could also have found that defendant's automobile was badly damaged, was bent and broken upon its right-hand side, and that the right headlight was smashed. Also that at the point where the defendant approached the deceased there was a clear range of vision of fifteen hundred feet in either direction; that the defendant did not see the trolley-car until he was about to hit it, and that the said car was fully lighted and had a bright headlight in front; that this car was almost immediately stopped, coming to a standstill within eight feet of the point where it was when the automobile struck the deceased.

The defendant took the witness stand in his own behalf, and upon cross-examination and without objection testified that he was familiar with Tolles Crossing and knew that for quite a long distance in approaching the crossing from the north objects could be seen in the highway within the range of vision for at least one thousand feet. He also testified that he had knowledge that it was a dangerous crossing, and that there was a trolley stop there to receive and discharge passengers. On this particular night his automobile was equipped with headlights that would only disclose an object ahead of it in the highway for seventy-five feet, and under the particular atmospheric conditions would not disclose an object more than thirty feet ahead of it in the highway. He also testified that he could stop the automobile at the speed in which he was then traveling, under all the conditions in approaching Tolles Crossing, in at least fifteen to twenty-five feet.

The jury might also have found that the defendant did not see the plaintiff's intestate or his companion on the highway, and did not see the trolley-car until just as he was about to strike it with the automobile; he did not blow his horn or sound any warning on approaching the plaintiff's intestate in the highway; also that, as the defendant approached Tolles Crossing, there was no traffic or other objects in the highway at the crossing to prevent turning his vehicle to the left and avoid striking the plaintiff's intestate or the trolley-car; also that the defendant did not slacken the speed of his motor-vehicle or in any manner attempt to stop it as he approached the plaintiff's intestate in the highway, and continued on after striking the plaintiff's intestate at approximately the same speed that he had been maintaining prior to striking him; also that deceased and his companion, while awaiting the trolley-car, stood for about two minutes watching it approaching from the south, but that during the first minute they watched the roadway to the north for automobiles coming from that direction but saw none, and during the last minute both were looking at the trolley-car which they intended to board.

From claimed proof of the defendant the jury might have found that the night of the day of the occurrence in question was dark with rain or a fine mist falling and that traffic was heavy, that the speed of defendant's car did not exceed twenty miles an hour, and that in the vicinity of Tolles Crossing the speed did not exceed fifteen miles an hour, since, as at that place there was a slight down-grade, he had reduced speed and also had blown his horn, and kept a sharp lookout and was driving close to the right-hand side of the road; that directly in front of defendant and about fifty feet distant was another automobile proceeding in the same direction; also that as the defendant approached said Tolles Crossing, he suddenly saw in front of his car and to the right the deceased and one other man, probably two, standing in the highway; that one man ran to the right of his car and one to the left of it; that the man who ran to the right of his car stumbled and fell directly in the path of the approaching trolley-car; also that when the defendant saw said man fall to the track in front of the approaching trolley-car he turned his car sharply to the right and came into collision with the trolley-car directly afterward, and that until said time the defendant had not seen the trolley-car; also that defendant did not strike the deceased with his car, and that the trolley-car proceeded beyond the point where the collision occurred between it and the automobile, a distance of about fifty-five feet, and that the automobile stopped about six feet beyond the rear end of the trolley-car.

Negligence was alleged by the plaintiff in that, at the time the injury was inflicted on his intestate, defendant was operating the automobile in a negligent, careless and reckless manner at a high and unreasonable rate of speed, without keeping a proper lookout for persons on the highway in front of him, without giving a timely signal, and without reducing his speed upon approaching this crossing where persons were accustomed to board or alight from trolley-cars, and without having his automobile under such control as to enable him to bring it to a stop in time to avoid striking the plaintiff's intestate.

The assignments of error, twenty-three in number, are somewhat repetitious, many of them stating an objection already made in slightly different form. Counsel for defendant has, however, grouped these in his brief, so that the principal points advanced may be largely reduced, and such an arrangement can best be followed in considering the case. Reasons of appeal numbered seven to twelve inclusive, with which counsel group numbers fifteen and sixteen, the latter two considering the case from the view point of damages, relate to the right of recovery upon the allegations of the complaint as related to the existing statute concerning claims resulting from a negligent killing. Plaintiff objects to any notice being taken of this point, in that there is nothing in the finding to show that such a question was raised or urged upon the trial. In part E of the finding the trial judge includes these claims as stated by the appellant, and it is fair to assume that they were made at some stage of the trial. The defendant moved for a directed verdict in his favor, and also to set aside the verdict as rendered, and in either of such motions this claim might properly have appeared, and defendant states in his brief that they were so made. As urged before us, the claim is that an action of the kind now considered is purely statutory, and the facts alleged in the complaint must show that the action is based upon the statute, that relief is claimed by virtue of its provisions, and that all of the terms of the statute have been complied with. Applying this rule, defendant says that the complaint does not count on the statute at all, since its allegations are to the effect that the trolley-car caused the injuries resulting in the death of Mezzi, and that the statute is not for the purpose of giving an action for injuries merely, but for injuries resulting in death only. In this claim we think counsel misconstrue the complaint and misinterpret the statute. After the construction of the statute in Murphy v.New York N. H.R. Co., 30 Conn. 184; Goodsell v. Hartford N. H.R. Co., 33 Conn. 51, and Kling v. Torello, 87 Conn. 301, 87 A. 987, there should be no doubt about the applicability of the law to the state of facts as plead. The case last cited holds that the right of action arising from any injury to a deceased person by reason of sufferings or disability during life is continued in his personal representative after death with an enlarged right of recovery for ensuing death, and also that instantaneous death may give rise to a right of action confined as to recovery to the event of death. The complaint purports to set forth the exact facts connected with the transaction, and is adequate as counting upon the statute; there is no defect in the allegation, and the claimed proof shows no variance.

It is further urged as error, that the trial court submitted to the consideration of the jury two issues not raised by the complaint or any other pleading in the case. Complaint is made, in the first place, that the court charged the jury upon the question of defendant's negligence in respect to the character of the lights upon defendant's car, in that they did not conform to the statutory provisions in that regard, notwithstanding that nothing specifically appears in the complaint with reference to defective lights upon the car. Evidence was received with reference to the character of these lights, and claim was made by plaintiff that the same were defective and not in accordance with statutory provisions. The court, at the request of plaintiff, explained to the jury the provisions of the Public Acts of 1921, Chapter 400, § 41, subsection c, regarding the requirements therein contained as to visibility of lights, and charged that if the jury found that the headlights upon defendant's car had not the power required by the enactment last referred to, and that such defect of power and intensity of light was a proximate cause of Mezzi's injury, then plaintiff should have a verdict in his favor. The court, however, instructed the jury that evidence as to headlights was to be considered in connection with all the other evidence.

The claimed negligence existing in the case regarding the defective lighting of the car, was fairly comprehended in and consistent with the negligent acts alleged in the complaint. Not to have proper lights was reasonably comprehended under the allegation of careless and reckless driving, and, more particularly, the jury might reasonably have found that in using headlights which were effective less than one-half of the distance required by law, the defendant could not and did not keep a proper look-out for persons upon the highway in front of him. The evidence as to the lights came in without objection and was clearly relevant under at least two of the specifications of negligence. If open to objection when offered, objection should have been made, or if defendant's counsel had reason to suppose that plaintiff intended to rely upon some claimed negligent act not specifically set forth, he had the opportunity to move for a more specific statement; and clearly, at the commencement of the action, the defendant was in a position to know far better than the plaintiff, whose intestate was dead, the nature of his lighting equipment, and whether or not the existence of any defect therein might be made the basis of a claim by plaintiff.

It is true that we have uniformly held that where a plaintiff makes definite allegations of particular forms of negligence, he is confined in his proof to the tenor of his allegations, but the rule is to be reasonably construed, and, in the lack of a motion for more specific statement, such allegations as are contained in the complaint should receive a reasonably comprehensive construction. A required dividing up of alleged negligent acts into very minute detail can easily be carried too far, and would deprive the plaintiff of favorable testimony developing at the trial of which he was previously ignorant, but of which the defendant was fully advised. See, as to the subject generally, Davis v. Guilford, 55 Conn. 351, 11 A. 350; Anderson v.United States Rubber Co., 78 Conn. 48, 60 A. 1057;Simeoli v. Derby Rubber Co., 81 Conn. 423, 430,71 A. 546.

In the second place, it is contended by defendant that the issue of intervening negligence was not properly in the case, because it first appeared in the charge to the jury, because of instruction asked by the plaintiff. Defendant claims that this ground of negligence was not alleged in the complaint, and, apparently relying on Russell v. Vergason, 95 Conn. 431, 434,111 A. 625, that the claim must be specifically set forth in the complaint to justify a recovery thereon. It is true that in the case cited we said: "That feature [intervening negligence]. . . was not presented in the pleadings, nor upon the trial, and we may not sustain a verdict upon an issue present in the evidence but not made an issue in the case." In this regard we state two ways in which the issue may be presented, one by pleading facts by which it is directly and in terms alleged, the other by taking advantage of testimony adduced in the case and claiming the point for presentation to the jury. We did not state that such a claim must be plead. Under our practice this claim has been plead, but it is ordinarily raised by the second method mentioned in the extract from the opinion just quoted. Pleading the claim is not necessary. The usual and proper allegations of defendant's negligence in a complaint cover any want of care on his part which may be proved in a given case, whether original and primary negligence, or intervening negligence appearing in a later phase of the transaction. Further urging this claim, defendant calls attention to the fact that plaintiff had plead his own freedom from contributory negligence, and he could not sustain this allegation "without destroying the basis for the application of a supervening negligence or last-clear-chance doctrine." The plaintiff's burden of proof is to show that he was free from contributory negligence of a sort that the law regards as such, that is, conduct proximately, materially and essentially contributing to his injury; without proving this fact he cannot recover, but if his proof does accomplish this, he has satisfied the requirement of negating contributory negligence.

As to both of the claims last considered, it may also be said that there are other and unrelated allegations properly plead, and apparently supported by reasonable evidence, upon which the verdict in the case may be sustained.

The defendant further claimed that the deceased, in standing upon the street awaiting the approach of the trolley-car and not looking in the direction from which defendant's automobile might be approaching for the space of one minute, violated Chapter 365 of the Public Acts of 1921, which imposes a penalty upon a pedestrian negligently and recklessly using a street, or for recklessly disregarding his own safety, and hence became guilty of negligence as a matter of law. The court refused so to hold, but did explain fully to the jury the bearing of the enactment, and instructed it to consider its provisions with the other evidence in the case as to the conduct of the deceased and in connection with the issue of proximate cause. In so doing the trial court did not err. The defendant's counsel strenuously insists that the provision of the statute just cited furnishes a definite legal standard of conduct, which should have been so stated to the jury as a matter of law, with instruction merely to find the fact of the position in which the deceased placed himself, and his conduct while there. The statute and all evidence in the case considered, clearly develops a situation where it was incumbent upon the jury to find the standard of conduct (that of a prudent man), as well as to find whether the conduct of the deceased measured up to standard fixed by it. The case comes entirely within the ruling of this court in Farrell v. Waterbury Horse R. Co.,60 Conn. 239, 21 A. 675, 22 id. 544, and numerous cases, which we need not cite, following the authority of that case.

It was claimed by defendant, and he offered to prove, that the deceased stumbled and fell directly in front of the trolley-car, and thereby sustained the injury complained of; and he now claims that the court erred in assuming and instructing the jury that because, in paragraph five of the complaint, the plaintiff alleges that his intestate was thrown in front of the trolley-car in such close proximity to its wheels that the motorman of the car was unable to bring his car to a stop and hence not negligent, that the question of the negligence of the motorman was not in the case. The court merely told the jury that the plaintiff did not claim such negligence. It was open to the defendant to show negligence in a third party if he could, and it does not appear from the record that any ruling of the court infringed his right so to do, and to show that the motorman was negligent and that his negligence was the real, efficient and proximate cause of the injury. Certainly none of the claimed proofs in the case furnishes any foundation for such a claim.

Defendant lays great stress upon his 20th assignment of error which concerns a portion of the court's charge, which was, in effect, that the jury might consider the extent of the injuries to the automobile itself from the force of the impact with the deceased and with the trolley-car, also the damage to the trolley-car and the distance that the automobile traveled after first striking the deceased and the front of the trolley-car, until it was brought to a stop by defendant.

The alleged error in this charge is that the court assumes that the trolley-car was at rest and also that the motorcar struck the deceased. This does not appear to be a fair inference, when the charge is read as an entirety. Elsewhere the court instructed the jury that these questions were in dispute and for its determination, and it is quite evident that the jury were not to consider the matters submitted to it by the portion of the charge just referred to, unless such facts appeared in evidence as would justify a finding of a collision of the motorcar with the trolley-car at rest, and also that the former actually hit the deceased. If both the trolley-car and the motorcar were in motion at the time of the collision, the extent of the harm thereby inflicted on the latter would still be of some evidential value, although less than if the trolley-car had come to a stop.

The other errors assigned are not of a character to require attention, and are practically disposed of by those previously herein considered.

There is no error.

In this opinion the other judges concurred.