Hizam v. Blackman

The complaint contains these allegations, which were not disputed: "1. On the 10th day of December, 1924, at about the hour of 5:50 p.m., the plaintiff was walking across Noble Avenue in said Bridgeport from the west side to the east side of said Noble Avenue at a point nearly opposite the house known as 776 Noble Avenue just north of the intersection of Ogden Street with Noble Avenue. 2. At said time and place the defendant was operating an automobile in a northerly direction on said Noble Avenue."

These allegations, reasonably interpreted, mean that during the whole time that the plaintiff was crossing Noble Avenue, the defendant was operating his automobile in a northerly direction on that avenue. We are also satisfied that, under the evidence, the jury could not reasonably have found otherwise than that during that time the lights of the defendant's automobile were lighted.

In his appeal, the defendant presents two distinct claims for our consideration: (1) that under the pleadings and the evidence presented, the verdict was contrary to the evidence, and the court erred in not granting his motion to set aside the verdict; (2) that the court in its charge to the jury, and in its refusal to charge as requested, erred.

The defendant claims that the plaintiff was required to prove, to entitle him to a verdict, both that the defendant was guilty of some negligence alleged, which was a proximate cause of the collision and injury, and, further, that he himself was not guilty of any negligence which was a proximate cause of the collision.

The jury could reasonably have found that the defendant was guilty of some negligence alleged which was a proximate cause of the collision and the injury.

The defendant claims that under the complaint and the evidence the jury must reasonably have found that the lights on the defendant's automobile were visible to the plaintiff, while he was walking across Noble Avenue, if he had used due care in the use of his eyes. The defendant claims that it is not sufficient to justify a verdict for the plaintiff, for the jury to have found that the plaintiff looked for the lights of an approaching automobile, but did not see them, and hence exercised due care.

The law is firmly established that it was the plaintiff's duty to exercise ordinary care both to avoid dangers known to him and to discover dangers or conditions of danger to which he might become exposed, and in the performance of that duty to be watchful of his surroundings and of the way in which he was going.Radwick v. Goldstein, 90 Conn. 701, 710, 98 A. 583.

To determine whether the plaintiff was negligent, he must be held to have been required to act upon what he should have known as well as upon what he knew.Mezzi v. Taylor, 99 Conn. 1, 11, 120 A. 871; Suga v.Haase, 95 Conn. 208, 110 A. 837; Seabridge v. Poli,98 Conn. 297, 301, 119 A. 214; Plona v. ConnecticutCo., 101 Conn. 445, 126 A. 529; Worden v. Anthony,101 Conn. 579, 126 A. 919; Simenauskas v. ConnecticutCo., 102 Conn. 676, 129 A. 790; Fenman v. Holden,75 Md. 1, 22 A. 1049.

Under the evidence the jury could not reasonably have found otherwise than that the plaintiff should have known, if he had exercised due care as he crossed Noble Avenue, that the defendant, in an automobile with the lights aglow, was approaching from the south on the easterly side of that avenue, and that the plaintiff's failure to see that automobile and avoid it was negligence on his part, which was a contributory cause of the collision and injury.

The verdict shows that the jury did not hold the plaintiff to the performance of the burden of proving that he was in the exercise of due care at the time of the collision, or that his failure so to do was not a proximate cause of the collision. The doctrine of supervening negligence was not presented to the jury, nor a request to do so made.

The motion of the defendant that the verdict be set aside as contrary to the evidence should have been granted.

As a new trial must be ordered, the defendant's grounds of error as to the charge may become important on the new trial.

There are no grounds of reversible error alleged in the reasons of appeal, and there is no occasion to discuss the first, second, fourth, fifth and sixth grounds of error, except to say that the fifth and sixth grounds of error, which involved requests to charge as to the terms and effect of Chapter 365 of the Public Acts of 1921, were properly refused; the charge of the court as to contributory negligence was sufficient to cover so much of this statute as was applicable to this case, and to supplement the charge by giving these requests would tend to confuse rather than aid the jury.

The third ground of appeal alleges that the court erred in charging the jury as follows: "To state the thing perhaps a little informally, the person who crosses as the plaintiff was crossing, diagonally, with his back partly turned to the traffic, between streets, should be perhaps a little more careful than a person who is crossing at right angles on a regular crosswalk."

We think that the court should have stated definitely that the duty of using due care in the situation supposed, required a greater degree of care on the plaintiff's part than that required of him at a cross-walk.

We said in Walter v. Hansen, 99 Conn. 680, 683,122 A. 564: "Ordinary care in a situation of danger would require greater care than in one free from danger [or less dangerous], and the greater the danger the greater the care."

While a pedestrian may ordinarily cross a street at any place, it is the law that "in doing . . . so he is bound to exercise care commensurate to the increased danger incident to being in a place where pedestrians do not usually go, and, consequently, where drivers need not take the same precaution in anticipation of their presence that they are required to take at regular crossings." Berry on Automobiles (3d Ed.) p. 318; Todd v. Lewis, 92 Wash. 213, 158 P. 1006;Sheldon v. James, 175 Cal. 474, 166 P. 8; Huddy on Automobiles (1924 Ed.) p. 556.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.