Citation Numbers: 45 A.2d 789, 132 Conn. 461, 163 A.L.R. 247, 1946 Conn. LEXIS 88
Judges: Maltbie, Bbown, Jennings, Ells, Dickenson
Filed Date: 1/3/1946
Status: Precedential
Modified Date: 11/3/2024
The defendants appeal from the denial of motions to set aside a plaintiff's verdict on the grounds that it was against the evidence and was excessive in amount.
The jury might have found the following facts: The decedent, on October 27, 1944, having a message to deliver to the operator of a bus, planned to meet it at the junction of South Main Street, which is a *Page 463 state highway running south from Waterbury, and Platts Mills Road, which enters South Main Street from the west but does not cross it. The decedent was driven by her husband in his car north toward Waterbury on South Main Street, and at about 8:45 p.m. he stopped on the extreme easterly side of the street, opposite the entrance of Platts Mills Road. The bus which the decedent intended to meet came from the west on that road and its customary stop was at a stop sign just before the intersection. It had not arrived. The decedent alighted from the car on its right side, passed around its rear end and proceeded to cross the street toward the bus stop. Her husband had turned to converse with his mother, who was sitting on the rear seat, and saw the decedent pass to the rear of the car but did not see her again until after she had been struck by the defendants' car. In a matter of seconds after she left, he heard the sound of a car and a "thump" opposite his left window. He got out of his car and found his wife lying in the middle of South Main Street, ninety-eight feet south of a point in the center of the road opposite the stop sign on Platts Mills Road. The decedent had been struck by the left side of the defendants' car, which was proceeding southerly on South Main Street. She suffered very severe injuries and lived only a few minutes.
South Main Street at the place of the accident is a straight concrete-surfaced highway forty-seven feet wide exclusive of the shoulders, with two lanes for southbound traffic and two for northbound, and with a black tar strip three feet wide in the center. The weather was clear, there was no traffic coming from the south, and there was nothing to interfere with the defendant driver's vision of the road ahead. A street light north of the intersection shed some *Page 464 light over it. The concrete surface of the roadway was light colored, described by one witness as "white" or "bright." The defendant driver did not see the decedent until he was twenty or twenty-five feet away. Despite the fact that there was a sign about five hundred feet north of the intersection designating twenty-five miles an hour as the proper speed, he was driving forty-five miles or more an hour. He did not put on his brakes or change the direction of his car before striking the decedent. The jury reasonably could have concluded that he was negligent in driving his car at an excessive speed and in not seeing the decedent in time to avoid running into her.
The defendants claim that the jury could not properly have found the plaintiff free from contributory negligence. There were only two witnesses who testified that they actually saw the car strike the decedent: the defendant driver and a passenger in his car. The defendants contend that their testimony was that when the car was twenty or twenty-five feet away and proceeding in about the middle of the roadway for southbound traffic, the decedent came running slowly or "trotting" into its path and was struck by it. The defendants' claim of law is that, having produced this evidence, the burden of proving contributory negligence placed upon them by statute (General Statutes, Cum. Sup. 1939, 1399e) was met, and that upon all of the evidence the decedent was guilty of contributory negligence as a matter of law. In support of their claim, they cite Hawley v. Rivolta,
The defendants make a further claim that the verdict for $9000 was excessive. The decedent was fifty-one years of age. The normal life expectancy for a woman of that age is 19.47 years. She married the plaintiff in 1941. The jury could also have found these further facts: She had been previously married and had brought up a family of seven children. She had later become estranged from her husband and had been employed as a housekeeper almost up to the time of her marriage to the plaintiff. At that time she had accumulated savings to the amount of about $100. After her marriage, she kept house for her husband and also largely took care of his mother, a woman of advanced age and in ill health, who lived next door. She had been troubled to some extent with gallstones but two or three months before the accident had been operated upon for them. At the time of the accident she was generally in good health and could work as well as anyone except that trouble *Page 466 with her feet prevented her standing long at a time and interfered somewhat with her getting about on them.
The situations presented by Farrell v., L. G. DeFelice Son, Inc.,
Under our statute, differing from Lord Campbell's Act in England and statutes in this country of like purport, the cause of action "which the executor or administrator is permitted to pursue is not one which springs from the death. It is one which comes to the representative by survival. The right of recovery for the death is as for one of the consequences of the wrong inflicted upon the decedent." Kling v. Torello,
So far there is no difficulty in determining the rule of damages. When, however, we review our decisions as to the sum of money to be awarded as damages for the death,1 we find it difficult to harmonize the statements in them. This has led us to review the basis of such an award as consequent upon the nature of the cause of action created by the statute. It is, as we have said, a continuation of that which the deceased would have had if he had lived. He could have recovered for pain and suffering and for any expense which resulted from the injury. He could also have recovered for any injury; the loss from that cause, aside from certain subjective elements, would consist essentially of the impairment or destruction of his ability to carry on his wonted activities; Atlanta Street Railroad Co. v. Jacobs,
When the injured person dies, pain and suffering, the expenses of illness and the like come to an end, and damages for the death would not include these elements. But there remains the fact that death has deprived the deceased of any further opportunity to carry on his accustomed activities, gainful or otherwise, and here, too, the destruction of earning capacity may well be the principal element of recovery. Broughel v. So. New England Tel. Co.,
The rule for measuring damages resulting from *Page 470 death may then be briefly summarized as follows: It is that sum which would have compensated the deceased so far as money could do for the destruction of his capacity to carry on life's activities as he would have done had he not been killed, including the destruction of his earning capacity, for such time as he would probably have lived, but with due allowance for the effect which the ordinary vicissitudes of life might have had upon his continued enjoyment of those capacities and, as far as destruction of earning capacity is concerned, for the fact that a present payment will be made in lieu of sums which, had he lived, would have been received at periodic times in the future.
In this state "damages due to the incapacity of a wife by reason of a personal injury are recoverable by her and not her husband." Hansen v. Costello,
There is no error.
In this opinion the other judges concurred.
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Mezzi v. Taylor , 99 Conn. 1 ( 1923 )
Ward v. General Ice Cream Corporation , 118 Conn. 363 ( 1934 )
Silverman v. Springfield Advertising Co. , 120 Conn. 55 ( 1935 )
Jackiewicz v. United Illuminating Co. , 106 Conn. 310 ( 1927 )
White v. L. Bernstein & Sons, Inc. , 123 Conn. 300 ( 1937 )
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Leblanc v. Grillo , 129 Conn. 378 ( 1942 )
Hatch v. Merigold , 119 Conn. 339 ( 1935 )
Reynolds v. Maisto , 113 Conn. 405 ( 1931 )
Hawley v. Rivolta , 131 Conn. 540 ( 1945 )
Ratushny v. Punch , 106 Conn. 329 ( 1927 )
Imbriani v. Anderson , 76 N.H. 491 ( 1912 )
Davis v. Margolis , 108 Conn. 645 ( 1929 )
Schrayer v. Bishop , 92 Conn. 677 ( 1918 )
Kling v. Torello , 87 Conn. 301 ( 1913 )
O'Connor v. Zavaritis , 95 Conn. 111 ( 1920 )
Broughel v. Southern New England Telephone Co. , 73 Conn. 614 ( 1901 )
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Stang v. Hertz Corporation , 81 N.M. 348 ( 1970 )
Grace E. Perkins, Administratrix of the Estate of Roy W. ... , 219 F.2d 422 ( 1955 )
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Feldman v. Allegheny Airlines, Inc. , 382 F. Supp. 1271 ( 1974 )
Rosemarie A. Perry, as Administratrix of the Estate of ... , 489 F.2d 1349 ( 1974 )
Cann v. Mann Construction Co. , 47 Del. 504 ( 1952 )
Floyd v. Fruit Industries, Inc. , 144 Conn. 659 ( 1957 )
Hurtig v. Bjork , 258 Iowa 155 ( 1965 )