Lukosevicia v. Bartow , 99 Conn. 723 ( 1923 )

The first assignment of error is too general to merit consideration. Our practice, following the statute, § 5837, and the common-law rule as to bills of exceptions, requires that the alleged errors be specifically assigned. Rules of the Supreme Court, § 7, Practice Book, p. 308; Harper Machinery Co. v.Ryan-Unmack Co., 85 Conn. 359, 82 A. 1027; Fagerholm v. Nielson, 93 Conn. 380, 106 A. 333; Hine v.McNerney, 97 Conn. 308, 116 A. 610.

The portion of the charge quoted in the second assignment of error states the rule as to contributory negligence correctly. It is contended in this connection that the court erred in failing to charge as to the doctrine of last clear chance; but we find nothing in this record which necessarily calls for any charge on that point. The plaintiff's claims state some but not all of the facts essential to the application of that doctrine, and the defendant's claim was that the decedent suddenly lurched from a position of safety against the front fender of the defendant's motor-car.

Neither the plaintiff's claims, nor the defendant's claims, nor both taken together, show that the evidence presented a state of facts which required that the jury be instructed as to the law of last clear chance.

The third assignment of error is well taken. The third claim of the plaintiff as set forth in the finding requires us to assume that he offered evidence from which the jury might, if properly instructed, have found that the defendant negligently failed to comply with the statute in not seasonably slackening his speed when overtaking the decedent, in not seasonably turning to the left, and in driving his car at an unreasonable and reckless rate of speed, in view of the width and traffic of the highway.

Under this claim the plaintiff was entitled to have the jury instructed, in effect, that any violation of these specific statutory rules of conduct by the defendant would, if found to have occurred, and to have been the proximate cause of the injury, require the jury to find the defendant negligent on that ground. The court did not so charge, but, on the contrary, instructed the jury that the statute was not applicable to the facts and circumstances in this case. This was error. As we said in Pietrycka v. Simolan, 98 Conn. 490, 495,120 A. 310: "The legislature, with unquestionable authority, has established an arbitrary standard for the test of conduct in operating motor-vehicles in the highways of this State. It has prescribed that certain acts, plainly stated or specifically defined, shall not be done. A violation of the statute is a violation of the duty which one person owes to another in respect of person or property, and therefore is negligence of itself, and when it is the proximate cause of injury it is actionable negligence." Citing Sharkey v. Skilton,83 Conn. 503, 508, 77 A. 950; Wolfe v. Ives, 83 Conn. 174,177, 76 A. 526.

There is error and a new trial is ordered.

In this opinion the other judges concurred.