Cappiello v. Haselman

Decision Date10 February 1967
Citation154 Conn. 490,227 A.2d 79
CourtConnecticut Supreme Court
PartiesRocco CAPPIELLO v. James H. HASELMAN.

Harold M. Mulvey, New Haven, for appellant (defendant).

B. Fred Damiani, New Haven, for appellee (plaintiff).

Before KING, C. J., and ALCORN, HOUSE, THIM and RYAN, JJ.

THIM, Associate Justice.

The plaintiff, a pedestrian, recovered a judgment for damages for personal injuries which he sustained when he was struck by an automobile owned and operated by the defendant. The defendant claims the court erred in concluding that he was negligent and that the plaintiff was free from contributory negligence.

As a preface to his attack on these conclusions, the defendant seeks to have the court's finding corrected. He claims that the court erred both in refusing to find certain admitted or undisputed facts set forth in his draft finding and in finding certain other facts without evidence. He argues that if the finding is corrected accordingly, it will not support the judgment.

There is some merit to the defendant's request for correction. '(I)n fairness to the parties the court is rarely justified in omitting facts which, having been proved or conceded, litigants ask to have incorporated in the finding' and which they deem material to the presentation of their claims on appeal. Watrous v. Sinoway, 135 Conn. 424, 427, 65 A.2d 473. The court should include in its finding 'all facts which * * * (it) finds proven which are claimed to be relevant and material to the questions of law raised.' Practice Book § 619. The functions of the trial court and of counsel regarding the finding are somewhat distinct but yet are interrelated. The power to determine what facts have been proven lies primarily with the court as the trier of the facts. The right to decide what proven facts are relevant and material to the questions of law to be presented on an appeal lies primarily with counsel. Of course, we may ultimately disagree with counsel as to the materiality of the included facts to the questions of law presented. They should, however, be before this court. Otherwise counsel is put to the task of seeking to have the finding corrected by this court. Bridgeport Airport, Inc. v. Title Guaranty & Trust Co., 111 Conn. 537, 543, 150 A. 509, 71 A.L.R. 345.

In the present case, the court apparently took it upon itself to determine what proven facts were material to the questions of law involved in the case. Several paragraphs of the defendant's draft finding relating to physical facts were obviously undisputed, and yet the court refused to include them in its finding, apparently feeling that they were immaterial. In so refusing, the court erred, and the finding will be corrected to include these facts; Corsino v. Grover, 148 Conn. 299, 307, 170 A.2d 267, 95 A.L.R.2d 751; Town of Waterford v. Connecticut State Board of Education, 148 Conn. 238, 247, 169 A.2d 891; so far as we deem them material to the questions presented. See Grievance Committee v. Dacey, 154 Conn. 129, 132, 222 A.2d 339. Other paragraphs of the draft finding were neither admitted nor undisputed; Solari v. Seperak, 154 Conn. 179, 182, 224 A.2d 529; and therefore cannot be added to the finding. Since one paragraph of the draft finding mixes undisputed and disputed matters, the entire paragraph was properly refused. Holczer v. Independent Brass City Lodge, Inc., 104 Conn. 539, 540, 133 A. 666.

The defendant's claim that unsupported facts were erroneously included in the finding is without merit. The challenged paragraphs of the finding either are directly supported by the evidence or are based on inferences reasonably drawn from the evidence. See Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21; Naumann v. Wehle Brewing Co., 127 Conn. 44, 46, 47, 15 A.2d 181. As such, their inclusion was not erroneous.

The finding as corrected reveals the following: On February 2, 1965, the plaintiff, aged sixty-nine, traveled by bus from New Haven to Orange to seek employment. He inquired about work at a department store and at a motel. At the motel, he was told that the last bus back to New Haven was about to leave. The plaintiff attempted to catch this bus but failed, and consequently he started to walk, in an easterly direction, back to New Haven along the Boston Post Road.

It was a clear, crisp winter evening. The plaintiff was wearing a light gray hat, a dark blue overcoat, a black scarf, and dark trousers. In this general vicinity, the Boston Post Road is a straight and level four-lane blacktop highway consisting of two eastbound and two westbound traffic lanes. Both the north and south shoulders of the highway are eight feet wide. There are no sidewalks. It had snowed the day before, and there had been intermittent snow earlier in the day, but by evening the highway and the shoulders had been cleared and the pavement was dry and in good condition. On the outside edge of both shoulders, there were snowbanks two to three feet high. Persons walking parallel to the highway therefore had to walk on the eight-foot shoulders.

As the plaintiff started walking, he noted there were overhead lights on the north side of the highway, so he walked on the north shoulder heading east facing the westbound traffic. After a little less than a fifth of a mile, the overhead lights on the north side of the road ended, and overhead lights on the south side of the highway started. Therefore, the plaintiff crossed the road and continued along in an easterly direction on the south shoulder with his back to the eastbound traffic. Traffic was heavy. From the overhead lights, the auto headlights, and the reflections of these lights from the fresh snow cover, the highway and shoulder were well lighted. The plaintiff proceeded along for about two miles on the south shoulder, walking on the shoulder about three feet from the traveled portion of the highway. He was wary of the heavy traffic, and he looked back over his shoulder a number of times as he walked along.

At approximately 7 p.m., the defendant, the owner and operator of an automobile, was driving easterly along the Boston Post Road in Orange. He was a resident of Orange and had traveled this highway many times. He was aware that, because of the absence of sidewalks, pedestrians walked along the shoulders of the highway. Nevertheless, as he drove along, he so operated his vehicle that its right side was approximately three feet on the south shoulder of the highway.

As the defendant approached the area where the plaintiff was walking, the area in front of his car was fully illuminated for a few hundred feet; yet the defendant testified, and it was so found, that he did not see the plaintiff. The right front of the defendant's car struck the plaintiff, and the plaintiff was knocked unconscious. The point of impact was only twenty-five feet west of a telephone pole from which was suspended one of the overhead lights which were along the south shoulder.

Although the defendant did not see the plaintiff, he did hear the sound caused by the impact. He stopped his car and walked back and found the plaintiff's unconscious body lying at an angle on the shoulder of the highway, his feet three feet, and his head six feet from the traveled portion of the highway. The plaintiff sustained multiple injuries as a result of the accident. The only damage to the defendant's car was the tearing loose of a four-foot chrome strip extending from the right headlight to the right front door.

From the foregoing facts, the court concluded that, under the circumstances, the defendant was negligent in that...

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    ...that all of the material paragraphs are supported by the evidence. Walker v. Jankura, 162 Conn. 782, 294 A.2d 536; Cappiello v. Haselman, 154 Conn. 490, 492, 227 A.2d 79. The defendant's third assignment of error seeks to strike some twenty paragraphs of the finding on the ground that they ......
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