Anderson v. Colucci

• Decision Date: 27 December 1932
• Citation: 163 A. 610,116 Conn. 67
• Court: Connecticut Supreme Court
• Parties: ANDERSON v. COLUCCI et al.

163 A. 610

116 Conn. 67

ANDERSON v. COLUCCI et al.

Supreme Court of Errors of Connecticut.

December 27, 1932

Appeal from Superior Court, Fairfield County; Frank P. McEvoy Judge.

Action by Malcolm A. Anderson against Joseph Colucci, administrator and the Autocar Sales & Service Company for damages for personal injuries alleged to have been caused by the negligence of one of the defendants and by the heedless and reckless disregard of the plaintiff's rights by the other, brought to the superior court and submitted to a jury. Upon the plaintiff's evidence, the defendants moved for a nonsuit, which was granted, motion to set it aside denied and judgment entered for the defendants, and the plaintiff appeared.

Matthew H. Kenealy, of Stamford (Daniel E. Ryan, of Stamford, on the brief), for appellant.

Raymond E. Baldwin, of Bridgeport, for appellee Antocar Sales & Service Co.

Thomas R. Robinson, of New Haven (Daniel L. O'Neill, of New Haven, on the brief), for appellee Colucci.

HAINES, J.

The complaint alleges, in substance, that on September 1, 1931, the plaintiff was an invitee and guest of the defendant Colucci's intestate, and was riding in an automobile at that time owned and operated by the intestate, traveling west on the Boston post road in Greenwich; that at the same time a wrecking truck of the defendant the Autocar Sales & Service Company, which had come from the opposite direction, was turning across the post road nearly opposite a building known as Adam's Place, and, while so being operated, the two vehicles collided, causing severe injuries to the plaintiff; that the collision and resulting injuries were caused by the careless and negligent operation of the wrecker, in that the driver was not keeping a proper lookout, was driving across the post road without any signal or warning and in disregard of the width, use, and traffic of that road and without proper lights; and, further, that the collision and resulting injuries were also caused by the heedless and reckless disregard of the rights of others by the intestate, who was driving at a dangerous and excessive rate of speed and failed to keep a proper lookout for the traffic on the highway. The respective defendants entered a general denial.

Upon submission of the plaintiff's evidence, the court granted the defendants' motion for a nonsuit and denied the plaintiff's subsequent motion to set it aside, and entered judgment for the defendants. This action of the court is the sole ground of the present appeal by the plaintiff, and thus presents the single question whether the evidence in its most favorable aspect was such as to make out a prima facie case for the plaintiff under General Statutes, § 5662.

Our rule as to nonsuits is well stated in Girard v. Grosvenordale Co., 83 Conn. 20, 25, 74 A. 1126, 1128, and supported by many other decisions of this court: " In passing upon the motion, the superior court was bound to regard the truth of such of the evidence introduced by the plaintiff as went farthest in support of the complaint, as admitted, and to take into account every favorable inference that might legitimately be drawn from it. It was enough if he had thus made out a prima facie case, though it might in the opinion of the court be a weak one. ‘ A party has the same right to submit to a jury a weak case, as he has *** a strong one." ’ A motion for nonsuit is not to be granted if its decision requires the court to pass upon the credibility of witnesses, Fox v. Shanley, 94 Conn. 350, 355, 109 A. 249, Pentino v. Pappas, 96 Conn. 230, 232, 113 A. 451, and it should be denied if the plaintiff's evidence, undisputed by the defendant and strengthened by every favorable inference of fact that might reasonably be drawn from it, contained any substantial evidence supporting the affirmative of the issues thus made, Baggish v. Offengand, 97 Conn. 312, 320, 116 A. 614.

To justify a verdict against the defendant Autocar Sales & Service Company under the allegations of the complaint it was incumbent upon the plaintiff to establish prima facie that the negligence of this defendant in one of the ways alleged was a proximate cause and a substantial factor in producing his injury.

As to the defendant Colucci, the plaintiff had the legal status of a guest, and it was incumbent upon him to establish prima facie that the intestate in one of the ways alleged acted with heedless and reckless disregard of the rights of others, and that such conduct was a proximate cause and a substantial factor in the plaintiff's injuries.

The driver of the wrecker, called by the plaintiff, testified he had completed the turn and had passed into the north lane heading west when struck by the Colucci car, but there was other evidence which the jury could well have believed which placed the rear of the wrecker at that moment near the center of the four-lane road. Officer Clark testified that when he reached the scene the Colucci car was " about the...