Dinda v. Sirois

• Decision Date: 26 February 1974
• Court: Connecticut Supreme Court
• Parties: Helen DINDA et al. v. Henri SIROIS et al.

Page 75

347 A.2d 75

166 Conn. 68

Helen DINDA et al. v. Henri SIROIS et al.

Supreme Court of Connecticut.

Feb. 26, 1974.

William F. Gallagher, New Haven, with whom, on the brief, was Cyril Cole, Hartford, for appellants (plaintiffs).

Andrew J. O'Keefe, Hartford, with whom, on the brief, was Robert E. Walsh, Hartford, for appellees (defendants).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, J.j.

BOGDANSKI, Associate Justice.

This case arose out of a collision of two automobiles at the intersection of Stanley and Dwight Streets in New Britain, Connecticut. Two of the plaintiffs, Helen Dinda and Mary Richards, were passengers in an automobile driven south on Stanley Street by the third plaintiff, Frank Dinda. As the Dinda vehicle made a left turn into Dwight Street, it collided with a vehicle proceeding north on Stanley Street. This vehicle was owned by the defendants Henri Sirois and Ferdinand Sirois, or one of them, and was operated by the defendant Shanel Lavoie, Jr. The plaintiffs, each in a separate count, brought an action against the defendants to recover damages for personal injuries and property damage resulting from the collision. The jury returned a verdict for the defendants on each of the three counts and the plaintiffs have appealed to this court from the judgment rendered.

The plaintiffs press two assignments of error: (1) that the trial court erred in charging the jury on the doctrine of unavoidable accident, and (2) that the trial court erred in failing to charge that the negligence of the plaintiff operator, Frank Dinda, was not to be imputed to the plaintiff passengers.

Claims of error addressed to the charge are tested by the claims of proof as they appear in the finding. Practice Book §§ 609, 635; Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 451, 254 A.2d 907. The plaintiffs claimed to have proved that the plaintiff driver Frank Dinda signaled his intention to turn left approximately 150 to 200 feet before the intersection; that when he made the turn the defendants' vehicle was 300 feet away, and that the defendants' vehicle was traveling at an excessively fast speed. The defendants claimed to have proved that the plaintiffs' vehicle failed to signal a left turn, that Frank Dinda turned into Dwight Street when the defendants' vehicle was only a car's length away and that the defendants' vehicle approached the intersection at a reasonable speed.

On those claims of proof, the task confronting the jury was clear. The jury had to determine whether the plaintiffs had proved that the collision was caused by the negligence of the defendant Lavoie or the defendants had proved that it was caused by the negligence of the plaintiff, Frank Dinda, or that the collision was caused by the negligence of both operators. On the evidence presented, no other causes could have been found. If the jury found that Lavoie was negligent and that his negligence was a proximate cause of the collision and the injuries and damage that followed, they were then required to find the defendants liable to the plaintiff passengers. If the jury also found that Frank Dinda was not negligent, or that any negligence on his part was not a proximate cause of the collision, they were required to find the defendants liable to him as well. But if the jury found that Frank Dinda was contributorily negligent, they were not permitted to impute his negligence to the other plaintiffs, who would still recover damages if they sustained their burden of proof against the defendants. Silverman v. Silverman, 145 Conn. 663, 668, 145 A.2d 826; Sullivan v. Krivitsky, 100 Conn. 508, 510, 123 A. 847. Since the plaintiff passengers did not sue the plaintiff Frank Dinda, if the jury found that he alone was negligent, the plaintiff passengers could not recover.

The court instructed the jury on burden of proof, negligence, causation, and contributory negligence. The plaintiffs did not request a charge that Frank Dinda's contributory negligence, if any, could not be imputed to the other plaintiffs, and the court did not so charge. At the request of the defendants, the trial court charged the jury on the doctrine of unavoidable accident, as follows: '(I)f the accident would have happened even though the defendant was not negligent, his negligence or their negligence cannot be held to be a cause of the accident. The law calls such an accident an unavoidable accident. It is such an accident that could not have been prevented by the exercise of reasonable care. If you should believe from the facts as you find them that the accident which we are concerned with was of such a character, then the plaintiff, Helen Dinda, would not be entitled to recover from the defendants.' Without explanation, the court charged on unavoidable accident in dealing with the claims of the plaintiff passengers only, and not when it dealt with the claim of the plaintiff operator. Moreover, the court did not relate this portion of its charge to the evidence or the pleadings.

The plaintiffs took timely exception to the charge on the ground that on the facts of the case the jury could not find that the accident was unavoidable. This court has recently cautioned that the unavoidable accident charge is not to be given in every case in which the defendants deny negligence. 'Instructions concerning unavoidable accident should usually be given only when the record can support a finding that the negligence of neither party is involved. When a foundation has been established for the charge it is within the sound discretion of the trial judge to determine whether a charge should be given on the subject of unavoidable accident.' Robinson v. Faulkner, 163 Conn. 365, 370, 306 A.2d 857, 861. We have also said that the refusal to charge on unavoidable accident would not be error if the trial court gave adequate instructions on negligence, proximate cause and burden of proof. Robinson v. Faulkner, supra.

The reasons for our disapproval of the unavoidable accident charge have been well expressed in decisions of the Supreme Courts of California and Oregon. In Butigan v. Yellow Cab Co., 49 Cal.2d 652, 658, 659, 660, 320 P.2d 500, 504, the California court said: 'In the modern negligence action the plaintiff must prove that the injury complained of was proximately caused by the defendant's negligence, and the defendant under a general denial may show any circumstance which militates against his negligence or its causal effect. The so-called defense of inevitable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury. . . . Since the ordinary instructions on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on these issues in...