11 A.2d 354 | Conn. | 1940
At dusk, about 7 p.m. on September 4, 1937, the plaintiff was struck and injured by the automobile of the defendant, which the latter was driving with headlights lighted, westerly along the main highway through the village of East Canaan in the town of *346 Canaan. The highway had a concrete roadway twenty feet wide with a hard shoulder four feet in width on each side. From the top of the grade about four hundred and fifty feet east of where the plaintiff was struck, the road was straight with a gradual down grade toward the west. The plaintiff, a woman sixty-seven years old, having delivered a bottle of milk at a house on the south side of the road, was returning to the north side when struck. The right front headlight lens of the defendant's car was broken and the right front fender dented by the impact. These facts are undisputed.
The plaintiff testified that before crossing the road she stopped at the south edge to let a car pass going east; that she then went onto the edge of the concrete, looked both ways and saw no car coming; that at the center of the road she again looked both ways and saw no car; that when she reached the north edge of the concrete she "looked"; that as she proceeded across she walked at an ordinary gait; and that she was standing on the grass north of the north shoulder and had just picked up a bottle of milk which she had left there, when the defendant's car struck her on her right side. Further evidence upon her behalf was that the defendant's car approached at from forty-five to fifty miles per hour. The defendant's evidence was that he was driving at from thirty to forty miles an hour along the middle of the northerly half of the concrete; that the plaintiff ran across in front of his car just after passing either in front or in back of the car proceeding easterly; that the first and only time that he saw her was at the center of the road; and that applying his brakes he continued without change of course and brought his car to a stop within fifteen feet after hearing the impact.
The court set aside the verdict for the plaintiff on *347
the ground that the jury were unwarranted in finding the plaintiff free from contributory negligence. The memorandum of decision states that the plaintiff "either did not look at all or else if she did look, . . . it was without . . . any care at all on her own part. It is inconceivable that she should not have seen . . . this approaching car." This indicates that the court's decision was predicated upon the plaintiff's failure to discover the approaching car. Assuming that its conclusion would have been correct within the principle which the court relied upon in Hizam v. Blackman,
As this court has said in Kurtz v. Morse Oil Co.,
The point determinative of the motion to set aside the verdict, therefore, was not whether the plaintiff *349
was negligent as a matter of law in failing to look or to see the defendant's approaching car as she proceeded across the traveled portion of the highway, but rather whether after reaching the north shoulder or the grass beyond, she was negligent as a matter of law either in what she did or failed to do under the circumstances. Giving the plaintiff the benefit of the most favorable inferences to be drawn from the evidence, it cannot be said that she was. Whether she was contributorily negligent was a question for the jury. Miller v. Adkisson,
There is error, and the case is remanded with direction to enter a judgment for the plaintiff in accordance with the verdict.
In this opinion the other judges concurred.