Busko v. DeFilippo

• Decision Date: 01 March 1972
• Citation: 294 A.2d 510,162 Conn. 462
• Court: Connecticut Supreme Court
• Parties: Ann L. BUSKO v. August DeFILIPPO.

Page 510

294 A.2d 510

162 Conn. 462

Ann L. BUSKO v. August DeFILIPPO.

Supreme Court of Connecticut.

March 1, 1972.

Serge G. Mihaly, Bridgeport, with whom were Joseph Mihaly, and, on the brief, William J. McGrath, Bridgeport, for appellant (plaintiff).

Richard A. Jontos, Bridgeport, for appellee (defendant).

Before HOUSE, C.J., and THIM, RYAN, SHAPIRO and LOISELLE, JJ.

LOISELLE, Associate Justice.

The plaintiff Ann Busko brought this action to recover damages for injuries and property damage she had suffered when her motor vehicle struck a telephone pole. She alleged that the defendant's negligence had caused these injuries and property damage. The defendant denied the allegations of negligence and pleaded contributory negligence on the part of the plaintiff. A jury returned a verdict for the defendant and the plaintiff appealed.

The plaintiff's assignments of error which are pursued in her brief relate solely to the trial court's instructions to the jury. The correctness of the charge is determined by the claims of proof of the parties. Practice Book § 635; Moonan v. Clark Wellpoint Corporation, 159 Conn. 178, 180, 268 A.2d 384; Levett v. Etkind, 158 Conn. 567, 569, 265 A.2d 70. Relevant to these assignments are the claims of proof which follow. At approximately one hour before sunrise on October 14, 1963, the plaintiff was operating her motor vehicle in a southerly direction on Madison Avenue, to two-way street in the town of Trumbull. As she was traveling, she reached a point where the road had an upgrade and a curve to her right. When she had rounded the curve, she was blinded by lights which were directly in front of her. Thinking that these lights came from a car traveling in its proper lane and that she was in the wrong lane, the plaintiff turned to her right to avoid the car. She then saw a telephone pole in her path and immediately turned to her left to avoid it. The right side of her vehicle, nevertheless, came in contact with the pole, and she suffered the injuries and damages for which she seeks recovery. The lights, which appeared to the plaintiff to be in her path, belonged to the defendant's milk truck. It was parked 'on the wrong side of the road,' facing north, partially in a driveway and partially on the westerly shoulder of the southbound lane of Madison Avenue, with its headlights lighted and directed toward vehicles approaching in the southbound lane.

The defendant claims that the plaintiff's headlights were lighted; that she could see between 400 to 500 feet in front of her; that there was 335 feet of unobstructed, straight road north of the defendant's parked vehicle; that the plaintiff admitted traveling thirty-five to forty miles per hour in a twenty-five-mile-per-hour speed zone; and that the headlights on the defendant's truck were not on high beam.

The plaintiff assigns error in the court's refusal to charge that the defendant's violation of General Statutes § 14-251, regulating the parking of motor vehicles on public highways, was a proximate cause of the collision as a matter of law; in the court's charge on the applicability of General Statutes § 14-87, concerning lights on standing vehicles; and in the court's failure to instruct the jury that the issue of contributory negligence should not be considered. The assignments of error directed to the court's refusal to set aside the verdict and order judgment notwithstanding the verdict have not been briefed and are considered abandoned. Mendez v. Mendez, 160 Conn. 237, 239, 278 A.2d 795; Labbadia v. Bailey, 152 Conn. 187, 190, 205 A.2d 377.

During the course of the trial, the defendant admitted that it was dangerous to leave his vehicle standing on the westerly shoulder of the street facing north, with the headlights facing southbound traffic. The court considered this testimony as a judicial admission and charged the jury that the defendant admitted violating § 14-251, as alleged in the complaint, and that the violation constituted negligence in and of itself. Whether this admission is a judicial admission or evidence to be considered by the jury need not be discussed, as the defendant assigns no error in this instruction.

The court left the question whether this negligence was a substantial factor in causing the plaintiff's damages for the jury to determine. The plaintiff relies heavily on Mahoney v. Beatman, 110 Conn. 184, 147 A. 762, in contending that the court erred in not charging that the violation of § 14-251 was the proximate cause of the collision, as a matter of law.

The court correctly charged that the violation of the statute, although negligence per se, had to be proven to be a substantial factor in causing the plaintiff's damages before she could recover. Madenford v. Interstate Lumber & Mill Corporation, 153 Conn. 62, 64, 212 A.2d 588; Krupa v. Farmington River Power Co., 147 Conn. 153, 159, 157 A.2d 914; Nichols v. Watson, 119 Conn. 637, 640, 178 A. 427. This requirement applies to negligence which results from the violation of a common-law rule as well as a statute. Moore v. Bunk, 154 Conn. 644, 649, 228 A.2d 510; Nolan v. Morelli, 154 Conn. 432, 443, 226 A.2d 383. The causal relationship between a negligent act and damage is ordinarily one of fact. Mastorgi v. Valley View Farms, Inc., 138 Conn. 313, 315, 83 A.2d 919. 'It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as matter of fact.' Marley v. New England Transportation Co., 133 Conn. 586, 591, 53 A.2d 296, 298; Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 30, 266 A.2d 370. That reasonable minds could differ on this issue of causation is apparent. In considering Mahoney v. Beatman, supra, it must be remembered that in that case the court was the trier of facts and that the discussion concerning the substantial factor test was predicated on the facts found. From the claims of proof, especially the claim that the plaintiff had unobstructed visibility for at least 335 feet, it would be entirely reasonable to conclude that the location of the defendant's truck was not a substantial factor in causing the injuries and damages claimed. On these facts, it cannot be said that the issue of causation was so far established as to remove reasonable differences of opinion. Palombizio v. Murphy, 146 Conn. 352, 358-360, 150 A.2d 825.

The plaintiff next claims that the court erred in submitting to the jury the issue of her speed on the question of contributory negligence. She claims that, even though she may have been negligently traveling ten to fifteen miles per hour above the posted speed limit, it was not a substantial factor in causing the collision with the pole. She again relies heavily on Mahoney v. Beatman, supra, in support of her contention. That reliance is without justification. In the Mahoney case, the court, as the trier of fact, found that the plaintiff's speed was not a substantial factor in causing a collision. The court did not imply that the evidence presented would compel the trier to reach only one conclusion on the issue of causation. It is the rare case, especially in the absence of controlling, indisputable, physical facts, in which the jury is precluded from determining contributory negligence on evidence produced within the allegations pleaded. Labbee v. Anderson, 149 Conn. 58, 60, 175 A.2d 370. In the ordinary case, the question of contributory negligence is one of fact. Pillou v. Connecticut Co., 143 Conn. 481, 484, 123 A.2d 470; Drobish v. Petronzi, 142 Conn. 385, 387, 114 A.2d 685. 'It becomes a matter of law only when the conduct involved is manifestly contrary to that of the reasonably prudent man or is plainly and palpably like that of such a man. Farkas v. Halliwell, 136 Conn. 440, 445, 72 A.2d 648.' Faille v. Hollett, 150 Conn. 397, 400, 190 A.2d 53, 55; Douglass v. 95 Pearl Street Corporation, 157 Conn. 73, 79-80, 245 A.2d 129. The plaintiff's traveling at an excessive speed does not fall within either extreme. Because the plaintiff swerved away from the telephone pole when she first observed it and still struck it with the side of her car, a fair and reasonable person could conclude that her excessive speed was a substantial factor in causing the collision. It is true that she might not have hit the pole if the defendant's truck had not been parked near it, but the question here is only whether she contributed to her inability to avoid hitting the pole. It cannot be stated as a matter of law that the plaintiff's speed played no part in producing the accident; Grzys v. Connecticut Co., 123 Conn. 605, 611, 198 A. 259; that the collision with the pole would have happened whether or not there was excessive speed; Madenford v. Interstate Lumber & Mill Corporation, 153 Conn. 62, 64, 212 A.2d 588; Baum v. Atkinson, 125 Conn. 72, 75, 3 A.2d 305; or that her speed was a static condition so remote as to be inconsequential. Kinderavich v. Palmer, 127 Conn. 85, 15 A.2d 83; Smithwick v. Hall & Upson Co., 59 Conn. 261, 269, 21 A. 924.

The final claim of the plaintiff is that the court erred in charging that § 14-87 applied to the defendant's conduct, when it had charged that the violation of § 14-251 by the defendant constituted negligence. When her offers of proof included evidence to support an allegation, the court was obligated to instruct the jury on the law applicable to the issue raised by the allegation. Her strategy of pleading negligence in sixteen respects may have worked to her disadvantage, by requiring a charge which may show the defendant's conduct as to some of her allegations of negligence against the defendant to have been proper in some respects. This does not, however, entitle her to complain. Moreover, she should not be allowed to claim as error what her own action induced. Crowder v. Zion Baptist Church, Inc., 143 Conn. 90, 98, 119...