14 A.2d 713 | Conn. | 1940
The complaint alleged that "said decedent's death was caused solely by the reckless, careless and negligent operation of defendant's automobile," and assigned the usual negligence specifications. At the close of the evidence the court discovered in the requests to charge a claim of wanton misconduct and inquired of counsel, "Where do you get wanton misconduct in this case?" The reply was, "If the jury found this man was driving the automobile carelessly, and should have had an idea this man would be on that road, wouldn't that be wanton misconduct?" The court replied, "I should say not. If I submit wanton misconduct and you get a verdict, you would never support it." Whereupon counsel said, "Well then I want my verdict supported, if I get one." This came very close to an abandonment of the claim. New counsel appeared upon this appeal, and attempt to reconstruct the finding so as to lay a basis for the claim that the court should have submitted an issue of wanton misconduct to the jury.
The court also expressed doubt that the allegations of the complaint, recited above, supported a charge of reckless or wanton misconduct. In Leonard v. Gambardella,
The jury could quite readily have found contributory negligence. The only effect of finding wanton misconduct would be to permit recovery notwithstanding contributory negligence. Leonard v. Gambardella, supra, 449. Fearing that the court's finding as to evidence offered does not support a claim that reckless misconduct was in the case, counsel seek to have it corrected, principally to show speed so great that the decedent's body was hurled one hundred and twenty feet through the air. This correction cannot be made. The evidence falls far short of supporting such a claim. The only change we are justified in making is that evidence was offered to prove that the car was going fast. That is the only testimony as to speed, except that of physical facts, and was offered by the plaintiff, a vitally interested witness occupying a seat of doubtful vantage.
The plaintiff offered evidence tending to prove that Mr. Brock was walking across a well lighted intersection; that when about half way across he was struck with great force and violence by defendants' car, proceeding easterly on Barnum Avenue, a four lane concrete highway forty feet and two inches wide; that the pavement was wet but there was sand on it, and along the southerly edge of Barnum Avenue there was a strip of ice which was about three feet wide and ran through the intersection in both directions for several hundred feet; the night was clear; the impact threw his body in the air, and after the accident it was about one hundred and twenty feet east of where he had been struck; the car was going fast; it continued to *82 the east and ran off the road on the southerly side up onto the sidewalk, after plowing through a bank of hard snow about three feet high bordering the southerly edge of the road; one of Mr. Brock's shoes was found on the highway at a point east of where the defendant's car was stuck in the snow bank; Mr. Brock died without regaining consciousness; the defendant driver did not see Mr. Brock until he was within a few feet of him; the windshield was dirty and the wiper was not in operation at the time; defendants' car skidded on the ice on the southerly side of the highway for a distance of over twenty-four feet before hitting the snow bank; the operator sounded no warning; the left headlight was damaged as a result of the impact, and after the collision the radiator was found pushed back against the fan so that the car would not operate; that "The injuries and death of the plaintiff's intestate were proximately caused by the negligent operation of the car of the defendant Merritt D. Waldron, by his agent the defendant Merritt C. Waldron in that said car was being operated at an unreasonable rate of speed under the circumstances, in that the operator failed to keep a proper lookout, in that the operator failed to keep the car under proper control, in that the car was being operated while the windshield was dirty and impaired the vision of the operator, and in that the operator failed to sound warning of his approach."
The defendants' claims of proof as to the vital facts were quite to the contrary, and clearly would support the verdict, especially as to a finding of contributory negligence; but the question before us is whether on the plaintiff's claims of proof the issue of wanton misconduct should have been submitted to the jury for their consideration.
We have said that no specific rule can be *83
established which will determine what constitutes reckless or wanton misconduct on any given state of facts, and that it is a question of fact for the jury. Coner v. Chittenden,
The plaintiff's principal reliance is on excessive speed, which here depends entirely on inferences from doubtful physical facts in evidence. The testimony that the car was "going fast" means little. Nichols v. Nichols,
Had the issue of reckless misconduct been submitted to the jury, they could not reasonably, upon the facts appearing in the claims of proof, have found that the driver's conduct evinced other than a high degree of *85 negligence and therefore the facts claimed to have been proven were insufficient to justify a recovery on this issue.
There is no error.
In this opinion the other judges concurred.