Hensen v. Connecticut Co. , 98 Conn. 71 ( 1922 )

Willow Street in Waterbury runs into West Main Street; its continuance is called Meadow Street, which is wider than Willow Street and enters West Main Street at a different angle. West Main Street is wider east of Meadow Street than west of it. The points of intersection of the centers of West Main and Willow streets are necessarily different from those of West Main and Meadow streets.

The plaintiff claimed to have proved these facts: the plaintiff was riding his bicycle south upon Willow Street with due care, and when he arrived at the intersection of Willow and West Main streets he turned to his left in order to proceed along West Main Street to the east. There were at this time two trolley tracks on West Main Street and, a short distance east of the corner of West Main and Meadow streets, by means of switch tracks, both the east- and west-bound tracks on West Main Street were connected with the south- and north-bound tracks on Meadow Street. Upon the west-bound track on West Main Street, just east of the branch tracks, stood two trolley-cars, and close behind them the defendant's truck. A traffic officer stood on the west-bound track just west of the branch track and gave the signal to the west-bound traffic to proceed. Defendant's truck drove at a rapid speed around the southeast corner of West Main and Meadow streets and a considerable distance to the left of the point of intersection of these streets, and while the truck was so driven, plaintiff's bicycle ran into the side of the truck at a point about eleven feet from this corner and the same distance from the sidewalk, the plaintiff being unable, on account of the trolley-cars, to see the truck in time to stop his bicycle, and so ran into the truck while doing all he could to avoid a collision with it after he saw it.

The negligence of the driver as set up in the complaint and claimed to have been proved by plaintiff, consisted (1) in the operation of the truck at this point at a high speed and one greater than was reasonably proper, having regard to the width, traffic and use of the highway at that point, and so as to endanger the life and limb of the plaintiff; and (2) in negligently failing to keep to the right of the center of the intersection of these streets as required by the Public Acts of 1915, Chapter 297, § 2. The first ground of negligence, as well as the question of the plaintiff's due care, might have been found in favor of the plaintiff's claims, since the evidence upon these points was conflicting and such a conclusion was not unreasonable in law. The second ground of negligence might also have been found, upon the evidence, in favor of the plaintiff, since it was an undisputed fact, upon the evidence, that the truck passed to the left of any point claimed by either party as the point of intersection of these streets. It follows that the motion to set aside the verdict was properly denied.

Error is assigned in the instruction leaving to the jury the finding of the point of intersection of these streets. It was the province of the jury to find this point by the application of the method of finding it as given by the court. The charge did not present this method with sufficient particularity, but this failure did not prejudice the defendant, since its truck passed to the left of any point claimed by either party as the intersection of these streets, and of any point which could be claimed to be a point of intersection. The finding of the point of intersection of West Main Street east of Meadow Street and Meadow Street south of West Main Street, for the traveler proceeding west on West Main Street with a view to turning south upon Meadow Street, must be determined by finding the point of intersection of these parts of these two streets. The statute in effect at the time of this accident provided that at the intersection of public highways every person or vehicle should keep to the right of the intersection of the centers of such highways when turning to the right, and pass to the right of such intersection when turning to the left. The court charged the jury correctly, that the mere fact that the truck passed to the left of the center of the intersection was not alone conclusive proof of negligence or of a violation of the statute, since such failure might be excused or justified by the conditions; that "there might be justification for such operation of the truck in the situation facing the driver as he made the turn." The defendant claimed that its failure to have its truck pass to the right of the point of intersection of these streets was justified on two grounds: first, because the driver of the truck was directed by the traffic officer to take the course he did, and second, because the course taken by the driver was the customary route of the traffic from West Main Street going southwest into Meadow Street. The court's instruction to the jury was, in effect, that the traffic officer's direction to the defendant's truck driver did not require him to pass to the left of the center of the intersection of these streets, and therefore the driver was not justified in his failure to pass to the right of the center of the intersection of these streets because of any signal or direction given him by the traffic officer. The most careful reading of the evidence will fail to disclose that the officer gave any signal to the driver except to proceed, and that that signal did not specify the course the driver was to take or indicate to him that he was to pass to the left of the center of the intersection of these streets. The court's instruction upon this point was not erroneous, since it accorded with the undisputed facts. The second ground of justification, that the truck took the usual or customary course of traffic, was excluded from the consideration of the jury as a justification for the negligent conduct of the defendant's driver, because no evidence of this character was before the jury for this purpose. "Evidence as to the customary route taken by this traffic was received," as the court instructed the jury, "solely as affecting the question of the care exercised by the plaintiff, if you should find that he was familiar with this locality, and with the customary route of the traffic there." The instruction was obviously right; the error, if any, occurred in the ruling excluding evidence of this character.

The remaining errors relate to the rulings on evidence. The traffic officer who was stationed on the west-bound track of the West Main Street trolley and near the intersection of West Main and Willow streets, testified on direct examination in behalf of defendant, that the driver of defendant, after his truck came to a stop, gave him a signal that he wished to go down Meadow Street, and, after he had started traffic westward, he gave a signal directing the driver to go down Meadow Street. The witness was further inquired of by defendant: "Did he turn and go where you signalled him to go?" This question, upon objection, was changed to this one: "Did he go down Meadow Street in accordance with your signal?" This question was not pressed, but the following question was asked: "Did Mr. Ponselle turn into Meadow Street and go down there properly, as he should go?" and, upon plaintiff's objection, excluded, and defendant excepted to the ruling. The ruling was clearly right. It was permissible for defendant to introduce evidence of the direction the officer signalled the driver to go, and then to show where the driver in fact went. Whether he went properly or not was not for any witness to determine. Thereafter defendant inquired of the same witness: "What was the police department rule, the traffic rule, at that corner as to the method in which automobiles should turn from West Main Street, going from the center, to go south into Meadow Street?" and, upon plaintiff's objection, the question was excluded, and defendant excepted to the ruling. Assuming that the rule gave a course at this intersection which traffic turning south into Meadow Street should follow, we think this evidence was admissible, but until it had appeared that the officer signalled in accordance with the rule and that the driver drove his automobile along this route, we could not hold that this ruling was harmful, and these facts, which would have made the ruling harmful, do not appear. The same witness was further inquired of: "In turning from West Main Street coming from the center, south into Meadow Street, what was the customary route for vehicles to follow at that time?" Plaintiff objected to the question because it would establish a standard of conduct at variance with the statutory rule requiring operators of motor-vehicles at the intersection of streets to go to the right of the point of intersection, and that evidence of a customary route could not affect the driver's conduct and permit him to depart from the statutory route; and, further, that no evidence had been introduced to show that the driver knew of such custom or could anticipate it, and that the plaintiff had a right to assume that the driver would obey the statutory rule and turn to the right of the point of intersection. The court sustained the objection and the defendant duly excepted. Error cannot be predicated upon this ruling, since at the time the evidence was offered it had not been shown that the driver knew of the custom, or turned to the left following the customary route with which he was familiar. Had a customary route to the left for traffic been proven at this time, and had the driver known of it and turned to the left in consequence of his knowledge of the existence of such a route, and had it been proven that the traffic officer standing at this point did not then direct the driver to proceed otherwise, we are of the opinion that these facts might have been regarded as excusing his failure to obey the statutory rule. The situation before the trial court widely differed from this.

There is no error.

In this opinion the other judges concurred.