Section 42a-3-406 does not attempt to define what constitutes negligence sufficient to bar an individual from claiming that there has been a forgery other than to require that the negligence substantially contribute to the forgery, and, beyond that guideline, the question is one to be determined by the trier of fact in each case. "The conclusion of negligence or freedom from it is ordinarily one of fact. Where the conclusion reached is a reasonable one, the decision of the trial court will not be disturbed." Tarzia v. Koopman, 147 Conn. 540, 544, 163 A.2d 320. Here, the trial court concluded that the plaintiffs were not negligent in failing to authenticate Robert Burney's signature. It pointed out that Alice Perley had no reason to suspect Geraldine Burney, that the Perleys and Burneys were neighbors, that the Perleys had known Geraldine Burney for sixteen years as a successful real estate agent, and that they had once before transacted business profitably with her. Negotiations for the loan extended over three to four weeks, and, as noted above, Alice Perley gave the check to Geraldine Burney believing that the Burneys were going to combine the proceeds of the check with some of their own funds.
We agree with these claims. The jury could not have reasonably come to any other conclusion than that both vehicles were arriving at the intersection at approximately the same time under the rule of such cases as Peckham v. Knofla, 130 Conn. 646, 648, 36 A.2d 740, and Tarzia v. Koopman, 147 Conn. 540, 543, 163 A.2d 320; that the plaintiff failed to grant the right of way to the defendants' automobile in violation of General Statutes 14-245; and that the failure to do so constituted negligence. Vecchiarelli v. Weiss, 137 Conn. 660, 662, 663, 81 A.2d 123. Whether the defendant operator was also negligent is of no consequence because the jury had to conclude that the negligence of the plaintiff was a substantial factor in producing his injuries.
The verdict of $10,000 is not so clearly and palpably excessive that we can say the court erred in refusing to set it aside. Tarzia v. Koopman, 147 Conn. 540, 545, 163 A.2d 320; Sheiman v. Sheiman, 143 Conn. 222, 223, 121 A.2d 285. We also consider in this connection the defendants' claim of a variance between the plaintiff's pleading and his proof.
Contributory negligence is an affirmative defense, and only if the jury were compelled to find it proven could the verdict be set aside on the ground adopted by the trial court. Tarzia v. Koopman, 147 Conn. 540, 544, 163 A.2d 320. The facts which are material to the issue involved in this appeal and which the jury might have found may be rather briefly summarized.
Sadonis v. Govan, 132 Conn. 668, 670, 46 A.2d 895. The award of damages in such cases lies peculiarly within the province of the trier and will not be disturbed unless the sum assessed is clearly shown to be unreasonable. This is particularly so where the amount is determined by the court in a trial without a jury. Tarzia v. Koopman, 147 Conn. 540, 545, 163 A.2d 320; Stults v. Palmer, 141 Conn. 709, 711, 109 A.2d 592; Squires v. Reynolds, 125 Conn. 366, 369, 5 A.2d 877. In our examination of the record, we find nothing to require interference with the award of damages made by the trial court.
" Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 148. "The burden of proving that the plaintiff was chargeable with contributory negligence rested on the defendant." Tarzia v. Koopman, 147 Conn. 540, 544. This is the orthodox rule. "Yet even by the orthodox rule, the second burden, or duty of producing evidence, may be shifted by facts which raise a presumption of negligence, and these facts may appear . . . from the testimony adduced by the plaintiff himself, or even from the allegations of his declaration, especially under the modern looseness of pleading.