Error, and judgment directed for the defendant on the complaint and for the plaintiff on the counterclaim. The opinion in a former appeal in this case appears in 124 Conn. 259. The appellee filed a motion for reargument, which was denied.
We explained that ''[w]hen the grantees recorded this deed and entered and took possession thereunder, their possession is presumed to have been under the deed itself and not under the title of the cotenants.'' Id., 624; see also Hagopian v. Saad, supra, 124 Conn. 259 (plaintiff's possession was referable to deed under which he held); White v. Beckwith, 62 Conn. 79, 82, 25 A. 400 (1892) (legal presumption is that tenant in common entering and occupying land openly and exclusively takes in conformity with deed as sole owner); Clark v. Vaughan, 3 Conn. 191, 193-94 (1819) (jury was authorized to find ouster solely on basis of cotenant in possession's claim to hold entire estate by partition deed). While acknowledging that a quitclaim deed conveys only that 'right, title and interest' '' held by the grantor, and so is not necessarily inconsistent with a cotenancy; Lucas v. Crofoot, supra, 624; we nevertheless concluded that holding under a quitclaim can be '' 'good proof to show the [adverse] nature of the occupancy . . . .' '' Id., 625.
The truck left brake marks on Barnum Avenue seventy feet long. There was no claim that the brakes were in improper condition. Upon these facts the jury reasonably could have found that the defendant was not negligent. An outstanding consideration is that, if the jeep was to turn, the truck would be on its right and so would have the right of way. Carlin v. Haas, 124 Conn. 259, 264, 199 A. 430; Berman v. Stancliff, 117 Conn. 669, 670, 167 A. 728. This fact would justify the truck driver in proceeding without anticipating that the jeep would turn to the left in front of him. We refer briefly to but one of the many further claims made by the plaintiff.
In the view of these and all other pertinent circumstances, the trier of the facts must decide whether the driver making the left-hand turn was justified as a reasonably prudent person in believing that he could safely pass through the intersection in front of the oncoming car. As the court said in Carlin v. Haas, 124 Conn. 259, 264, 199 A. 430: "Where two cars approach an intersection proceeding in opposite directions and the driver of one intends to turn to his left around the center of the intersection to enter a street which crosses the one upon which he is proceeding, the risk of collision arises when he turns to enter that street. If at that time a car is approaching from the opposite direction under circumstances which to a reasonable man would indicate the danger of collision, the approaching car has the right of way."
Capital Transit Co. v. Holloway, supra. See also Carlin v. Haas, 124 Conn. 259, 199 A. 430; Gregware v. Poliquin, 135 Me. 139, 190 A. 811; Zuidema v. Bekkering, 256 Mich. 327, 239 N.W. 333; Gallagher v. Walter, 299 Mich. 69, 299 N.W. 811; Cramer v. Brictson, 286 Mich. 224, 281 N.W. 601; Hermanson v. Switzer, 188 Minn. 455, 247 N.W. 581; Whitaker v. Keogh, 144 Neb. 790, 14 N.W.2d 596; Moore v. Vick, 181 Va. 157, 24 S.E.2d 429; Hefner v. Pattee, 1 Wn.2d 607, 96 P.2d 583; Pettera v. Collins, 203 Wis. 81, 233 N.W. 545. The rule as to pedestrians is the same, Faucett v. Bergmann, 57 App.D.C. 290, 22 F.2d 718. "When a litigant has a duty to look and testifies that he did look but did not see what was plainly to be seen, such ineffectual looking has no more legal significance than if he had not looked at all."
Id., 733. Even though the truck did enter the intersection first, as claimed by the defendants, that would not establish that it had the right of way. As Rode's car was upon the right of the truck, the truck would not have the right of way unless its driver could reasonably believe that, if both cars continued to run at the rate of speed at which they were running, there would not be a risk of collision but that he could cross in safety in front of Rode's car. Neumann v. Apter, 95 Conn. 695, 701, 112 A. 350; Carlin v. Haas, 124 Conn. 259, 264, 199 A. 430; Catania v. Conforte, 130 Conn. 178, 181, 32 A.2d 646. There was no error in the denial of the motions to set aside the verdicts on the question of liability. The exceptions to the charge will be considered in the order in which they appear in the Adley Company's brief.
Foote v. E. P. Broderick Haulage Co., 123 Conn. 296, 298, 195 A. 191. To be sure, its driver, in exercising his right of way, was bound to operate his car as would a reasonably prudent person "with the knowledge that he had the right of way"; Carlin v. Haas, 124 Conn. 259, 264, 199 A. 430; s. c., 126 Conn. 8, 14, 8 A.2d 530; but he had the right to assume, until he knew or should have known to the contrary, that a car approaching from the left would yield the right of way to him; Kleps v. Dworkin, 127 Conn. 648, 651, 19 A.2d 421; "whether he was guilty of contributory negligence could only be determined in the light of that assumption"; McNaught v. Smith, 127 Conn. 450, 454, 17 A.2d 771. On the other hand, it was the duty of the defendant to yield the right of way; Neumann v. Apter, 95 Conn. 695, 700, 112 A. 350; Friedman v. Cunningham, 104 Conn. 737, 132 A. 401; and the fact that the bus obscured his view of any car approaching from his right would require of him care in proportion to the danger of the situation. Bruce v. Bitgood, 113 Conn. 783, 784, 156 A. 859. Obviously, the test of proper care to be applied in the case of Gerard was quite different from that to be applied to the defendant.
The trial court has found that the plaintiff did not have the right of way; but it has found him negligent and reference to the memorandum of decision shows that it reached this conclusion even upon an assumption that he did have the right of way. Though he did have it, he was bound "to operate his car as a reasonably prudent person with the knowledge that he had the right of way would operate his car under like circumstances." Jackson v. Brown, 106 Conn. 143, 146, 137 A. 725; Carlin v. Haas, 124 Conn. 259, 264, 199 A. 430; s. c., 126 Conn. 8, 14, 8 A.2d 530. It was a question of fact for the trial court to decide whether or not he used such care.
State v. Murphy, 124 Conn. 554, 566, 1 A.2d 274. While in one paragraph of the charge the trial court stated that the plaintiff could not recover "if he was guilty of negligence himself which contributed to his own injuries," on three subsequent occasions it added the adverb "materially" to "contributed." The plaintiff contends that the court should have used the expression "substantial factor," the use of which we approved in Carlin v. Haas, 124 Conn. 259, 265, 199 A. 430. In Smirnoff v. McNerney, 112 Conn. 421, 424, 425, 152 A. 399, we called attention to the synonymy of such expressions as "materially" and "substantially" and said that, while a casual reading of these various expressions might suggest that they were intended to convey different conceptions of the principle sought to be stated, "This of course is not so.
In Hizam v. Blackman, 103 Conn. 547, 131 A. 415, a pedestrian crossing a street at night was held guilty of contributory negligence in failing to see an approaching automobile with headlights aglow. In Carlin v. Haas, 124 Conn. 259, 264, 199 A. 430, it was held that a plaintiff approaching an intersection upon a straight road in the day time in clear weather, with good visibility and no other traffic, who failed to see another car approaching from the opposite direction, considering the speed at which both cars were proceeding, was negligent. In the plaintiffs' complaint, it was alleged, among other things, that the defendants' driver failed to keep a reasonable lookout for persons or vehicles crossing the intersection.