Duley v. Plourde

• Decision Date: 30 March 1976
• Court: Connecticut Supreme Court
• Parties: Kathleen DULEY v. Roger PLOURED et al.

Page 1148

365 A.2d 1148

170 Conn. 482

Kathleen DULEY v. Roger PLOURED et al.

Supreme Court of Connecticut.

March 30, 1976.

Howard F. Zoarski, New Haven, for appellants (defendants).

William T. Shea, Meriden, with whom, on the brief, was Joseph E. Fallon, West Hartford, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, BARBER and MacDONALD, JJ.

MacDONALD, Associate Justice.

In this appeal from a judgment rendered for the plaintiff in an automobile negligence action, the defendants have claimed error in several rulings on evidence and in the court's charge to the jury, but the principal issue raised is whether the court erred in denying the defendants' motions for a directed verdict and to set aside the plaintiff's verdict because of the failure of the plaintiff to sustain her burden of proof of negligence on the part of the defendant operator. The facts, as summarized in the briefs, are not in dispute and, insolfar as relevant, are hereinafter set forth.

On November 27, 1970, at approximately 11:30 p.m., the defendant Roger Plourde was operating a motor vehicle owned by his father, the defendant Ronald Plourde, in Waterbury. Passengers in the car at the time were the plaintiff, Kathleen Duley, and Donna Stallings, a friend of both parties. No other vehicle was involved and the only eyewitnesses to the accident were the three occupants mentioned. Neither the plaintiff nor the defendant operator had any recollection of how the accident occurred or of any conditions existing immediately prior thereto. The investigating officer was not called as a witness and there was no evidence of road or weather conditions, nor was there any evidence of speed or lack of control prior to the accident except for the testimony of the passenger, Donna Stallings, who testified only that the left side of the vehicle scraped against a cement retaining wall, after which it swerved back and forth, and that she then saw a piece of guardrail break.

In addition to the foregoing, the only evidence before the jury had to do with the driving condition of the vehicle involved, a 1968 Chevrolet Nova automobile, as analyzed by an expert witness, Harold Simmons. Simmons made his analysis on the basis of testimony by the defendant operator that on the morning of the day of the accident he had changed the standard rear tires to snow tires and lowered the air pressure in the shock absorbers without changing the elevation of the shocks on the rear of the car. Over the defendants' objections, Simmons, whose qualifications as an expert on automobile maintenance apparently were not challenged, testified that these changes, as described, on a 1968 Chevrolet Nova would tend to cause it to have lateral movement on the road and require oversteering, a condition of which, it was claimed, the defendant operator was or should have been aware since he had driven the car that morning before picking up the passengers.

The plaintiff's complaint, in one count, alleged three acts of negligence, namely, that the defendant operator (a) failed to keep and operate the automobile under proper and reasonable control; (b) operated said automobile at a rate of speed that was unreasonable, improper and excessive under the circumstances and conditions prevailing at said time and place; and (c) operated said automobile when he knew or should have known that it was in a defective and dangerous condition. It was not necessary for the plaintiff to prove more than one of the three allegations, for '(w)here several acts of negligence cause but one injury, the plaintiff may allege all the acts of negligence in one count and aver that they were the cause, and any one of them proved upon the trial will sustain the complaint.' Hoffman v. Mohican Co., 136 Conn. 392, 395, 71 A.2d 921, 922. The principal question for our determination is whether the jury on the evidence produced reasonably could have found that the defendant operator was negligent in one of the ways alleged. "Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand . . .. The credibility of each witness and the weight to be accorded to his testimony is for the jury and the evidence must be given the favorable construction in support of the verdict.' Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846, 847. The initial question presented here is whether, on the basis of the evidence introduced, and viewing that evidence in the light most favorable to the plaintiff, a jury could reasonably have found that the defendant . . . was negligent in one or more of the ways alleged.' Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270, 273.

The defendants argue in their brief that '(i)f the evidence lacked facts to support a finding of negligence, and there are many possibilities as to the cause of the accident other than negligence in the operation of the car, then a finding of negligence on the meager evidence in the case could result in a verdict for the plaintiff based only on surmise, speculation and conjecture,' citing Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148, and Sigel v. Gordon, 117 Conn. 271, 275, 167 A. 719. Those cases, however, as well as others cited in the plaintiff's brief, are readily distinguishable from the case before us in that they involved situations where the operator of the car died and there were no eyewitnesses whatsoever, while here the jury had the benefit of the testimony of a passenger as to events immediately preceding the collision with the guard rail, the actual collision and the condition of the occupants thereafter, as well as the testimony of the operator as to the condition of the car. 'It was not necessary that the plaintiff proof of negligence negate all possible circumstances which would excuse the defendant. . . . Nor was it necessary that the proof rise to that degree of certainty which excludes every reasonable conclusion other than that reached by the jury.' Terminal Taxi Co. v. Flynn, 156 Conn....