The majority opinion does not state a factor which is of some significance. The trial court sustained a claim of law made by the plaintiff that her decedent was free from any negligence directly contributing to her injury. It is true that our inquiry has to do only with the question whether the defendant failed to keep a proper lookout. We do not know what she was doing when struck, but I think we are bound to conclude that her conduct, whatever it may have been, was not negligent. Without any factual basis in the finding, the opinion proceeds to suggest that some other car may have forced her to jump away from it and into the defendant's car, and that this, although not negligence on her part, might warrant a finding that the defendant driver was not negligent. This seems to me to be an unwarranted disregard of the finding.
Why did not the driver see her in time to avoid striking her? This is the only question involved. It was a bright clear day. The intersection was a busy one. He stopped at the red light on Lamberton Street, and when it changed, proceeded in low gear, turned to his left at the center, and drove slowly down Kimberly *Page 460 Avenue, an unusually wide street. There was the woman, in the center of Kimberly Avenue, and whatever she was doing, she was in the exercise of due care. She was close to a busy crosswalk. When the light facing Lamberton Street changed to "go" for the driver, it changed to "go" for a pedestrian at that crosswalk. Such a driver is charged with knowing that pedestrians might be crossing, and his duty to use due care to look for them meant a considerable degree of care. Yet he did not see her at all until he looked back after the impact and saw her lying in the road. There was nothing whatever to obstruct his view. I am unwilling to say that he was using ordinary care.
Ordinarily a conclusion of negligence or of freedom from it is a conclusion of fact. It is only when, as sometimes happens, the conduct under investigation is so manifestly contrary to that of a reasonably prudent man, or is so plainly and palpably like that of such a man, that it may be considered a matter of law. Farrell v. Waterbury Horse R. R. Co., 60 Conn. 239,250, 21 A. 675, 22 A. 544. When the facts have been found by the court, nothing remains but for the court in the exercise of its legal judgment to draw its inferences from the facts, and in such a case the conclusion of the court can always be reviewed by the appellate court. See the careful consideration of this doctrine in Davis v. Margolis, 107 Conn. 417, 420,140 A. 823. In the instant case the court found the facts, and concluded they did not show that the defendant driver was negligent as to lookout. I think those facts plainly and palpably do prove he was negligent.
It is true that a review of the cases shows that we have generally supported the trial court. One obvious reason is that it heard the testimony of those who saw the accident, and judged their credibility. This is a *Page 461 good reason, but here there were no eyewitnesses, and there was no question of credibility; the court merely decided that the facts which it found did not prove that the defendant driver was negligent. Under these circumstances I have less hesitancy in disagreeing with the trial court's conclusion.