Craig v. Dunleavy

Decision Date19 July 1966
Citation154 Conn. 100,221 A.2d 855
CourtConnecticut Supreme Court
PartiesAgnes CRAIG, Administratrix (ESTATE of William CRAIG) v. Harold DUNLEAVY, Administrator (ESTATE of Douglas V. DUNLEAVY).

James F. Kenney, Bridgeport, with whom, on the brief, was John F. Clancy, Bridgeport, for the appellant (defendant).

Thomas J. Dolan, Bridgeport, with whom was Daniel D. McDonald, Bridgeport, for the appellee (plaintiff).

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

RYAN, Acting Justice.

This is an action claiming damages for the death of the plaintiff's decedent, William Craig, who was twenty-one years, old, alleged to have been caused by the negligence of the defendant's decedent, Douglas V. Dunleavy. The first assignment of error relates to the failure of the trial court to find certain subordinate facts claimed to have been admitted or undisputed. The few corrections to which the defendant has shown himself entitled are incorporated in the following statement of facts found by the court.

On August 1, 1963, Douglas V. Dunleavy and William Craig attended a party at the home of Elizabeth Romaine, on Old Ridgebury Road in Danbury. They arrived at about 11:30 p.m. and, while they were there, consumed at least one six-pack of beer each. They were making a lot of noise and were asked to leave but did not do so until about 1:45 a.m., at which time they left in a Chevrolet car owned by Craig's father and driven by Dunleavy. Craig was seated on the passenger's side of the car. About 4:45 a.m. that morning, the Ridgefield police were notified of an accident on route 102 in Ridgefield about fifty feet north of its intersection with Oroneca Road. No one witnessed or heard the accident. The car was found about four feet off the traveled portion of the road, and it contained the bodies of Dunleavy and Craig. The car had collided with a large rock or boulder, and its front end was severely damaged. At the time of the accident it was dark, and the road was wet from a recent rain. At the place where the accident occurred, route 102 goes downhill and makes a sharp curve to the left. The vehicle left the road at the right shoulder on the outside edge of the highway. The posted speed limit on this road is thirty miles per hour. The car left one tire mark 129 feet long consisting of black pieces of burnt rubber on the pavement. It was traveling too fast to negotiate the turn, at a rate of speed in excess of the posted speed limit and in excess of a speed which would be reasonable for the conditions. The body of Dunleavy was found on the driver's side and that of Craig on the passenger's side. The young men died instantaneously of injuries received in the crash. Both Dunleavy and Craig were under the influence of intoxicating liquor at the time of death, Dunleavy having an alcohol concentration in the blood of 0.18 percent by weight and Craig, of 0.19 percent by weight. See General Statutes § 14-227a(c)(3). Dunleavy was under the influence of liquor and unable to operate the motor vehicle properly.

From these and other facts which need not be recited here, the trial court found that Dunleavy was the driver and Craig a passenger, and it concluded that Dunleavy was negligent in that he operated the car while he was under the influence of intoxicating liquor, in that his speed was excessive in violation of General Statutes § 14-219, and in that he failed to have the car under control. The proximate cause of the death of the plaintiff's decedent was the negligence of Dunleavy. The court also reached the conclusion that there were no subordinate facts from which it could logically and reasonably find that Craig was chargeable with contributory negligence.

In the trial court, the defendant vigorously contested the identification of Dunleavy as the driver and that he was chargeable with any negligence which was a proximate cause of Craig's death. The assignments of error directed to identification, negligence and proximate cause have now been abandoned. The remaining questions before us are whether the trial court erred in reaching the conclusion that there was no proof of contributory negligence on the part of Craig and whether the court erred in misconstruing and misapplying the law as it relates to the defendant's special defense of contributory negligence.

The burden of proof of contributory negligence is on the defendant. Even though no evidence was offered by the defendant, it is the duty of the court to make its finding on the basis of all the credible evidence before it, irrespective of the source from which that evidence comes. Cinque v. Orlando, 140 Conn. 591, 593, 102 A.2d 532; Leitzes v. F. L. Caulkins Auto Co., 123 Conn. 459, 461, 196 A. 145. In the special defense, the defendant alleges that the plaintiff's decedent was chargeable with negligence which caused his death, first, 'in that he observed the defendant's decedent consume such a quantity of alcoholic beverage before he drove that he knew, or should have known, that the defendant's decedent was in an intoxicated condition'; second, in that the plaintiff's decedent 'was in such a condition of intoxication that he was rendered unfit to make proper uses of his senses and faculties'; and, third, 'because of either one or both of the aforesaid he failed to use the care of a reasonably prudent person under the circumstances then and there existing.'

As to the first aspect of this defense, the law is clear that if Dunleavy was intoxicated to the knowledge of Craig at the time they entered the car, or if Dunleavy's condition of intoxication was palpably apparent at that time, it would be negligent for Craig for enter the car and ride in it, and if the injuries and death of Craig resulted from the failure of Dunleavy to operate the car with proper care and skill because of his intoxicated condition the plaintiff could not recover. Fitzpatrick v. Cinitis, 107 Conn. 91, 95, 139 A. 639; see also Warner v. Liimatainen, 153 Conn. 163,...

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    ...unless they are inconsistent with the subordinate facts or involve the application of some erroneous rule of law. Craig v. Dunleavy, 154 Conn. 100, 105, 221 A.2d 855 (1966). Since the plaintiffs have not challenged the subordinate facts recited in the court's memorandum of decision, the que......
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