150 A. 520 | Conn. | 1930
This accident arose out of a collision upon a highway in the city of Stamford between an automobile being operated by the plaintiff's intestate and a trolley car of the defendant company. The company and the city were both made defendants. As regards the company the complaint alleged negligence in the manner in which its trolley car was being operated and also a failure on its part to keep the portion of the highway adjacent to the rails of its track in proper condition, and as regards the city it alleged a failure to maintain the highway as a whole in a proper condition. The trial court directed a verdict for the defendant city. As against the Connecticut Company the jury found the issues for the plaintiff. The plaintiff moved the court to set aside the verdict so far as it found the issues for the city and the court denied the motion. The Connecticut Company moved to have the verdict set aside so far as it found the issues against it and this motion the *523 court granted. From both of these rulings the plaintiff has appealed.
As regards the defects in the highway, the plaintiff's claim was that the intestate had been driving along the highway with his two left wheels between the rails of the track and, seeing a trolley car approaching, he attempted to turn off the track to his right but, because the surface of the roadway next to the rail of the track had been worn away, his wheels slid along the rail instead of going over it, until it was too late to avoid a collision. Upon this claim it is obvious that the only defect in the highway which could be the immediate cause of the accident would be in that portion of the roadway just inside and next to the rail. Chapter 181 of the Public Acts of 1925 places upon street railway companies the duty to maintain and repair so much of any highway as is contained within eight inches of each side of each rail of its track and provides that municipalities shall not be liable for any injuries due to any defect in such portions of the highway. As the immediate cause of the accident under the plaintiff's claim must have been a defect next the rail, any defect for which the city would be liable could have been at most but a concurring or contributing cause. It necessarily follows that the city could not be liable for such a defect, for it is only when a defect for which it is liable is the sole cause of the injury that the statute permitting a recovery of damages caused by it applies.Gustafson v. Meriden,
The jury might have found the following to be the *524 track being from nine to sixteen feet wide, with a row of trees at the edge of the pavement and a ridge of earth in front of them, so that, while an automobile and a trolley car can pass, care in operating them is required in order to avoid accident. There is a slight hill over which a trolley car comes as it proceeds in a southerly direction. On the day of the accident the pavement of the highway was in poor condition for some distance from the place of the collision; outside the rails there were holes and uneven spots; inside the rails the pavement was much worn and at places they projected above the surface of the road. In the evening after dark the deceased with a companion was driving northerly upon the highway and was proceeding with his left wheels between the rails of the track and his right wheels on the pavement outside the track. The lights upon his automobile were lit. It had been raining and the roadway and rails were wet. When the trolley car of the defendant came over the hill the automobile was from three hundred to five hundred feet distant. As the trolley car approached, the driver of the automobile was pulling at the steering wheel in an attempt to turn from the track, but his wheels slid along the rail and he could not get out. When the trolley car was some forty-five feet away his companion said: "My God, look out for that trolley car," and the deceased replied, "I am trying to." Just before the collision the left front wheel of the automobile crossed the track, but too late to avoid the accident. The motorman had been operating over this route more or less for thirteen years and knew the condition of the pavement, the situation with reference to the traveled roadway and that, as he testified, "There was plenty of room for an automobile and a trolley to pass provided good judgment was used on the part of both *525 people." He had seen the lights of the automobile when he came over the hill, but judged it to be outside the track on the easterly side of the roadway and did not pay much attention to it at first. The trolley car was coasting down the hill at a speed of twelve to fifteen miles. When the motorman realized that the automobile was on the track, it was only about forty or fifty feet away. He then put his brakes on hard and went into reverse, but the trolley car could not be stopped before the collision. It ran about eighty feet after the brakes were applied.
If the jury found these to be the facts, the question of negligence on the part of the defendant's motorman was certainly one of fact for determination by the jury. Considering the condition of the pavement, the narrow space where the trolley car might have to pass the automobile and that the situation was somewhat dangerous and required the exercise of good judgment by operators of both vehicles, they might reasonably have found him negligent in failing to keep a closer watch upon the approaching automobile, in not discovering it was partly upon the track until it was only some forty or fifty feet away, and in failing to have his car under such control that he could stop it when he saw or ought to have seen that a collision was imminent. As regards the conduct of the deceased, the jury might reasonably have found that the condition of the pavement was such as naturally to lead him to drive with his left wheels on the track until he came sufficiently near to the trolley car so that in the exercise of reasonable care he was required to turn out, that he did start to turn from the track in time to avoid the trolley, that had his wheels not slid along the rails, he would have escaped the collision, and that there was nothing in the evidence to charge him with knowledge that this was likely to occur *526
to the extent that it did. A finding that the deceased was not guilty of contributory negligence was within the province of the jury. Livingston v. Chambers,
As there was evidence sufficient to sustain a verdict for the plaintiff against the Connecticut Company upon the ground of negligence in the manner in which the trolley car was operated, it is not necessary to consider whether or not it might have been sustained upon the ground of the failure of the company to maintain the roadway along the rails of its track under the statute already referred to. Pratt, Read Co. v.New York, N. H. H.R. Co.,
There is no error as regards the defendant the city of Stamford and the judgment in its favor is affirmed; there is error as regards the defendant The Connecticut Company and the cause is remanded with direction to enter judgment upon the verdict for the plaintiff against it.
In this opinion the other judges concurred.