Summary
In Catricola v. Hayes, 114 Conn. 716, 717, 157 A. 271, we held that a pedestrian who before crossing a street looked and saw an automobile, but so far away that he could reasonably expect to cross in safety, could not be held guilty of contributory negligence as a matter of law, although he continued to cross the street without looking again until he was struck when near the further curb.
Summary of this case from Gardiner v. HayesOpinion
Argued November 5th, 1931
Decided December 8th, 1931.
ACTION to recover damages for personal injuries, alleged to have been caused by the negligence of the defendants, brought to the Superior Court in Fairfield County and tried to the court, Dickinson, J.; judgment for the plaintiff against the defendant Algieri and appeal by that defendant. No error.
Hugh J. Lavery, with whom was H. Frederick Day, and, on the brief, George N. Finkelstone, for the appellant (defendant Algieri).
George Dimenstein, with whom, on the brief, was Justus J. Fennel, for the appellee (plaintiff).
The plaintiff while crossing a street in Stamford was struck by an automobile being driven by the defendant Algieri as the servant and agent of the defendant Hayes. The finding, which cannot be corrected in any material respect, states that before crossing the street the plaintiff looked in the direction from which the automobile was coming and saw it, but that it was so far away that he could reasonably expect to cross in safety. Believing this to be so he continued across the street without looking again until he was within two feet of the further curb when he was struck. He cannot be held to have been guilty of contributory negligence as a matter of law. Porcello v. Finnan, 113 Conn. 730, 156 A. 863. The defendant driver admittedly saw the plaintiff, then in the middle of the street, in a position of peril, when he was one hundred feet away, but continued without reducing his speed so that if need arose he could avoid striking him. The conclusion of the trial court that the defendant driver was negligent is one which it might reasonably have reached. In the course of the trial the plaintiff amended his complaint by adding certain allegations which might have enabled him, upon proper proof, to invoke the doctrine of the last clear chance. But his act in so doing did not preclude the trial court from giving judgment for the plaintiff upon the basis it did, his freedom from contributory negligence and the negligence of the defendant driver.