Fitzpatrick v. Cinitis

• Decision Date: 12 December 1927
• Citation: 139 A. 639,107 Conn. 91
• Court: Connecticut Supreme Court
• Parties: FITZPATRICK v. CINITIS. BATERFARANO v. CINITIS. CARMODY v. CINITIS.

139 A. 639

107 Conn. 91

FITZPATRICK v. CINITIS.

BATERFARANO v. CINITIS.

CARMODY v. CINITIS.

Supreme Court of Errors of Connecticut.

December 12, 1927

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Actions by William J. Fitzpatrick, Jr., by Mary Baterfarano, and by Anna Carmody against Joseph G. Cinitis, to recover for personal injuries. Verdict and judgment for each of plaintiffs, and defendant appeals. No error.

Dennis W. Coleman and Hector P. Auray, both of Waterbury, for appellant.

William B. Fitzgerald, Thomas F. McGrath, and Edward B Reiley, all of Waterbury, for appellees.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and FOSTER, JJ.

FOSTER, J.

These three cases were tried together before the superior court and the jury, and were argued together before this court upon one finding of facts and upon identical claims of error. They will therefore be considered together in this opinion.

Numerous subsidiary facts may have been found by the jury. In so far as it is necessary to state them for a determination of the questions of law on these appeals, they are as follows: In the early morning of December 26, 1924, the plaintiffs and others dined at a restaurant in Waterbury with and as the guests of the defendant. At about 2 a. m. all of the party left the restaurant for their homes, the plaintiffs and two others riding as guests in an automobile owned and operated by the defendant and at his invitation. The defendant drove his automobile from Exchange place in Waterbury, along West Main street, to St. John's Church, carefully and at a speed not greater than 25 miles per hour, but thereafter he increased his speed so that at the intersection of West Main street and Riverside street he was traveling at the rate of about 60 miles per hour. In the crosswalk running north and south on West Main street on the westerly side of Riverside street, there is a depression about three inches in depth extending from the northerly side of West Main street to about its center. When the defendant's automobile reached the crosswalk, because of the speed at which it was being driven by the defendant over the depression in the crosswalk, the steering wheel shook out of his hands, and the automobile left the road and ran up the northerly sidewalk into a brick building, and as a consequence the plaintiffs were injured. The injuries of the plaintiffs were caused by the negligence of the defendant, to which the plaintiffs did not materially or essentially contribute.

The defendant claimed and offered evidence to prove that, at the dinner preceding the ride, he had, in the presence of the plaintiffs, partaken of such a quantity of alcoholic beverage that the plaintiffs knew or should have known that the defendant would thereby be made intoxicated, and that he was, in fact, in an intoxicated condition immediately before and at the time of the collision, and that his intoxication was the cause of the collision, and that by reason of their knowledge of the defendant having partaken of such a quantity of alcoholic beverage, the plaintiffs, by entering the automobile of the defendant as passengers, were guilty of negligence which materially and essentially contributed to their injuries.

Upon these claims of fact the defendant bases his more important claims of law in these appeals. The defendant had the right to present any evidence that proved or tended to prove these facts, and the court was bound to properly instruct the jury as to the law relative to the evidence so presented.

The defendant's second, third, fifth, and sixth requests to charge all relate to the law of the liability of the plaintiffs, if, before they entered the automobile, they knew or ought to have known of the condition of intoxication of the defendant. Each of these requests only purports to state a part of the law upon this assumed situation or the law of one aspect of it, and yet each request concludes with the words, " then the verdict should be for the defendant." It is obvious that, if the court had chosen to adopt the words of any one or more of these requests and then had used the concluding words above quoted, the charge would have been incomplete and erroneous.

In the case of Hull v. Douglass, 79 Conn. 271, 64 A. 353, this court said:

" The remainder of the requests to charge attempts to state in separate paragraphs portions of the law defining contributory negligence, and substantially ask the court to instruct the jury that by reason of each several statement contained in these paragraphs their verdict must be for the defendant. This request as framed by the defendant was objectionable, and the court properly declined to charge the jury in the language of the request."

On this question, the court charged the jury as follows:

" Also, if the driver of a car, from intoxication, is in a condition which renders him incapable of operating it with proper diligence and skill, and this is known or palpably apparent to one entering the car, that is a fact to be taken into consideration along with the other facts in the case in determining whether such person exercised ordinary or reasonable care in entering or remaining therein. If an ordinarily reasonable and prudent person would not have entered an automobile driven by a person known to be intoxicated, or whose intoxicated condition is palpably apparent, it would be negligent for one to so enter the automobile and ride therein, and, if injury resulted from the failure of the driver to operate the car with proper care and skill because of his intoxicated condition, then the person riding therein could not recover under those conditions. A guest or a gratuitous passenger, however, is not negligent in riding with an intoxicated driver or one under the influence of intoxicating liquors, if he was unaware of such intoxication, and no facts had been noticed by him which would arouse the suspicions of one of ordinary prudence in relation thereto. Also, if you find that the defendant was intoxicated or under the influence of liquor, you will determine

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