Connelly v. Connecticut Co. , 107 Conn. 236 ( 1928 )

The appeal is from the refusal of the trial court to set aside the verdict. The trolley car upon which the plaintiff was a passenger left Savin Rock at 10.09 a.m. on February 1st, 1926. Shortly thereafter the plaintiff boarded it at Brown Street and Campbell Avenue in West Haven and rode to the corner of Church and Chapel streets in New Haven, the car arriving there at 10.36. At about 9.15 that morning rain, which had previously been falling, changed to sleet, causing ice to form on exposed surfaces, and continued until 11.25 a.m. Before the car left Savin Rock the motorman applied sand to the front steps, but, although a supply was carried in the car, did not sand them again until after the end of the trip, at the Country Club. Neither did he warn passengers leaving the car at Church and Chapel streets of the slippery condition of the steps. As the plaintiff was descending the steps her foot slipped on ice that had formed on one of them, and she fell and was injured.

The jury might fairly have found that under the conditions so obtaining, the degree of care incumbent upon the defendant required that sand be applied to the steps of the car more frequently, and especially before discharging passengers at Church and Chapel streets. It also might have been held, not unreasonably, that it was the duty of the defendant's servants, under the circumstances, to warn passengers of the slippery condition of the steps and of the danger therefrom to which they were to be subjected in leaving the car. Hinckley v. Danbury, 81 Conn. 241, 243,70 A. 590; Rosenthal v. New York, N. H. H.R. Co.,88 Conn. 65, 69, 89 A. 88; 10 Corpus Juris, p. 910.

The appellant further contends that the jury, upon the evidence, could not exculpate the plaintiff from such contributory negligence as should bar her recovery. To a special interrogatory, "Did the plaintiff look at the step of the trolley car before she started to alight?" the jury gave an affirmative answer, and that they could reasonably have so found from the evidence is not open to serious question. A like answer was made to the further interrogator, "Did the plaintiff have hold of the grab handle or bar on the trolley car at the time she slipped?" There can be no doubt, upon the evidence, that at some time she grasped this handle; the only question made is whether the jury could fairly have held, as they did as evinced by their answer, that she so grasped it before she slipped, but was unable to hold on with sufficient strength to prevent her fall, or, as the appellant urges, could reasonably have found only that she did not so grasp it until or after the instant when her foot slipped on the icy step. The plaintiff was subjected to repeated questioning on this point, on direct and cross-examination and by the court, and she stated in answer to some of these inquiries that she took hold of the handle when she saw the step was icy, to others that she grasped it when her foot slipped, and once, on redirect, when asked if she had taken hold of the bar before she slipped, replied, "I don't remember now to recall it." Even were the plaintiff's case, in this respect, solely dependent upon her own testimony, it was the proper province of the jury to decide which of the conflicting versions was true and to be accepted. Clark v. Torrington, 79 Conn. 42,45, 63 A. 657. Being able to observe the appearance, mental capacity, and manner of the plaintiff, the degree of embarrassment or confusion under which she labored at various stages of the examination, and other circumstances most helpful to such a determination, the jury's situation was one of such vantage that their conclusion is not readily to be overridden upon the cold type of the printed record, only. Moreover, for the same reason, the refusal of the trial court to set aside the verdict, always entitled to great weight, is of especial significance when conflicting statements in a witness' testimony are relied upon in support of the motion.Lampe v. Simpson, 106 Conn. 356, 358,138 A. 141; Schroeder v. Hartford, 104 Conn. 334, 337,132 A. 901; Roma v. Thames River Specialties Co.,90 Conn. 18, 96 A. 169. Another consideration to be given effect here, as it doubtless was by the jury and the trial court, is that exact memory is not reasonably to be expected as to the sequence of events occurring within a few seconds of time, and immediately followed by severe injury accompanied by unconsciousness.

However, even if the plaintiff's testimony on this point were to be disregarded, the jury's conclusion derives adequate support from the testimony of defendant's own witness, the motorman, who was in a position to see and remember the occurrences preceding the plaintiff's fall. On direct examination he testified: "I opened both doors, and stood sideways, . . . to see passengers go out; several of them went out, and this old lady came; . . . and she got hold of the bar, and down to the step, released her hold, and she fell." This evidence, which was not subsequently modified or contradicted, clearly indicates that plaintiff grasped the grab handle before she stepped down onto the icy step. The jury, therefore, not only might reasonably have so found, but would hardly have been justified in reaching a contrary conclusion. This being so, we are not required to discuss the further question, which otherwise might arise, as to whether failure on the part of the plaintiff to take hold of the handle before stepping down would necessarily have constituted contributory negligence.

There is no error.

In this opinion HAINES, BANKS and FOSTER, Js., concurred.