Domenick v. Wilbert Burial Vault Co.

• Decision Date: 16 March 1962
• Citation: 149 Conn. 381,180 A.2d 290
• Court: Connecticut Supreme Court
• Parties: Patricia DOMENICK et al. v. WILBERT BURIAL VAULT COMPANY, Inc., et al. Supreme Court of Errors of Connecticut

Page 290

180 A.2d 290

149 Conn. 381

Patricia DOMENICK et al. v. WILBERT BURIAL VAULT COMPANY, Inc., et al.

Supreme Court of Errors of Connecticut.

March 16, 1962.

Howard A. Jacobs, New Haven, for appellants (plaintiffs).

Kevin T. Gormley, New Haven, for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

BALDWIN, Chief Justice.

In this appeal, the plaintiffs have pursued in brief and oral argument only the errors assigned in the finding and the charge to the jury. Other errors assigned are considered as having been abandoned. Maltbie, Conn.App.Proc. §§ 167, 327. Certain additions to the finding which are supported by the evidence and are material to a consideration of the plaintiffs' claims of error in the charge have been made. Castaldo v. D'Eramo, 140 Conn. 88, 93, 98 A.2d 664; Maltbie, op. cit. § 160.

The plaintiffs' claims of proof as thus corrected, may be stated in summary as follows: About noontime on December 31, 1956, the plaintiff Patricia Domenick, driving her husband's Studebaker sedan in a westerly direction on North Main Street in Branford, was approaching the intersection with Ivy Street. Although the surface of the highway was covered with mud and water, the weather was clear and visibility as good. North Main Street consisted of two concrete lanes, each ten feet wide, and was substantially level. Double solid white lines in the middle of the street ran from about 100 feet east of the Ivy Street intersection through that intersection and beyond it. Five hundred feet each of the intersection there were clearly visible signs placed by the state traffic commission; one indicated the intersection, and another carried the legend 'No Passing.' When Patricia was 200 feet east of the intersection, she indicated by the mechanical signaling device on her car that she intended to make a left turn into Ivy Street. As she entered the intersection, she slowed down to five miles an hour. Behind her, a truck owned by the named defendant was being operated by its employee, the defendant Frederick Parris. Without warning, Parris crossed the double white lines into the left lane and attempted to pass the plaintiffs' automobile as it started to turn left into Ivy Street. The two vehicles collided and Patricia sustained serious personal injuries. The defendants' negligence was the proximate cause of the collision.

The defendants claimed to have proved the following: Extending in an easterly direction from a point 100 feet east of the intersection, there was a broken white line in the middle of North Main Street. Parris had started to pass the plaintiffs' automobile before he reached the double solid white lines which began, 100 feet east of the intersection, where the broken line ended. Patricia failed to keep a reasonable lookout to the rear before she turned into Ivy Street. She signaled her intention of making a left turn simultaneously with her turning and while the truck was alongside her automobile, so that her signal could not be seen by Parris. The left front of the plaintiffs' car struck the right rear of the truck as it was passing. The proximate cause of the collision was contributory negligence.

The plaintiffs claim that the trial court erred in failing to charge the jury specifically with respect to the statute, § 1386d of the 1955 Cumulative Supplement (presently General Statutes § 14-234), which authorized the state traffic commission to determine 'no-passing' zones and required operators of motor vehicles to observe them. The complaint contained ten separate and distinct allegations of negligence, including allegations that Parris failed to obey the directions of the 'No Passing' sign and the white lines and that he drove the truck to the left side of the highway as he approached within 100 feet of the intersection. The court in its charge read all the allegations in the complaint which set forth the grounds of negligence claimed. It then charged that a violation of a statute prescribing certain conduct in the operation of a motor vehicle would constitute negligence which, if it proximately caused the plaintiffs' injuries, would be actionable negligence. After calling the jury's attention to the statute relating to speed (then Rev.1949, § 2407, presently General Statutes § 14-219) and the statute on reckless driving (then Rev.1949, § 2408, presently General Statutes § 14-222), and after reading pertinent portions of those statutes to the jury, the court also called their attention to § 1385d of the 1955 Cumulative Supplement (presently General Statutes § 14-235), and read from that statute as follows: 'No vehicle shall be driven to the left side of the highway * * * when approaching within one hundred feet of or crossing any intersection * * *.'

Under our rules, any party who intends to claim the benefit of a specific statute must file a written request to charge on the legal principle involved. Practice Book, § 153; Lowell v. Daly, 148 Conn. 266, 269, 169 A.2d 888. The plaintiffs filed no request to charge on § 1386d or any other statute. If the plaintiffs had intended to claim the benefit of § 1386d, they should have filed, in due time, a request to charge which explained the meaning of the section and its application to the claims of proof. Lowell v. Daly, supra. Section 1386d concerned the placing of 'no-passing' signs and markings by the state traffic commission and required that they be obeyed. From the claims of proof, it appears to be conceded that Parris turned onto his left-hand side of the highway to pass the plaintiffs' car as both cars approached the intersection. In the absence of a specific request to charge, error cannot be predicated on the court's failure to charge on § 1386d. Under the circumstances, a charge which instructed the jury to consider the application of § 1385d, forbidding...