Eamiello v. Piscitelli

• Decision Date: 05 February 1947
• Citation: 133 Conn. 360,51 A.2d 912
• Parties: EAMIELLO v. PISCITELLI et al.
• Court: Connecticut Supreme Court

133 Conn. 360

51 A.2d 912

EAMIELLO

v.PISCITELLI et al.

Supreme Court of Errors of Connecticut.

Feb. 5, 1947.

Appeal from Superior Court, New Haven County; King, Judge.

Action by Salvatore Eamiello against Dominic Piscitelli and another for personal injuries sustained when struck by an automobile as the alleged result of named defendant's negligence. Verdict and judgment for defendants after trial to a jury, and plaintiff appeals.

No error.

Louis Feinmark and John A. Mele, both of New Haven, for appellant.

David M. Reilly and Robert B. Vining, both of New Haven, for appellees.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

BROWN, Judge.

On the night of October 25, 1944, the plaintiff, while walking westerly on the southerly side of Spring Street in West Haven, was struck and injured by the defendants' automobile as it overtook him from behind and was passing to the left of another car proceeding in the same direction. The plaintiff brought this action to recover. Judgment was rendered for the defendants. The plaintiff has appealed, assigning error in the court's charge to the jury, refusal to correct the finding and rulings upon evidence.

Spring Street in the vicinity in question extends in a general easterly and westerly direction through a tract of marshland upon a fill which is abutted on either side by a ditch full of water. There is a line of utility poles along each side of the street, and the width of the hardened surface of the roadway between these pole lines is 30 feet. There is no sidewalk, but there is a sand path located north of the line of poles on the north side of the highway. The plaintiff, about 11 p. m., was walking westerly on the south side of the highway, two feet from its southerly edge as he claimed, seven feet therefrom as claimed by the defendants. It was further claimed by the plaintiff that the place where he was walking was a part of the south shoulder of the road, while the defendants claimed that this place was part of the hardened surface and that there was no south shoulder. While the plaintiff was thus proceeding, a man named Lane was driving his car westerly on the northerly half of the road at a speed of from 20 to 25 miles per hour. As the Lane car was approaching the plaintiff from the rear, the defendant Piscitelli, hereinafter referred to as the defendant, operating the car of the defendant owner, drove up in back of the Lane car and turned his car to the left to pass. As the two cars were proceeding about abreast, the defendants' car struck the plaintiff. The headlights of both cars were lighted but the defendant did not see the plaintiff before his car struck him. In answer to an interrogatory, the jury found that there was no shoulder on the south side of the highway.

The plaintiff has assigned error in the court's charge defining what constitutes the shoulder of the road as distinguished from the hardened surface intended for normal travel. No objection was made to these instructions as required by § 156 of the Practice Book, but the plaintiff contends that the rule should not be applied in this instance because he had fully stated his claim upon this point to the court in chambers during the trial in response to its inquiry. The court's refusal to find that such was the fact has also been assigned as error. The court did find that it was impossible for it to recall the discussion in chambers with sufficient accuracy to summarize it, and that it had had no reason to understand that counsel intended to rely upon this discussion as a substitute for requests to charge or objections to the charge under § 156. No proceedings to rectify the appeal were taken under § 365 of the Practice Book, and the finding is conclusive. Therefore this record does not present a situation so unusual that we will consider the error claimed notwithstanding the plaintiff's failure to comply with the rule. See Seaboard Freight Line, Inc., v. Castro Electric Co., 132 Conn. 572, 46 A.2d 10.

The plaintiff requested the court to charge that it is a common safety practice for a pedestrian on a road having no sidewalks to walk on his left side of the road so as to face oncoming traffic, instead of walking on the right with his back to such traffic, and that in passing upon whether the plaintiff was contributorily negligent the jury might give consideration to the fact that the plaintiff had the right to have that custom in mind in deciding which side of the road to walk on, if from their experience they believed it to be true. The court did not so charge but, having instructed the jury on the common-law rules and statutes applicable, further charged them that the pedestrian had equal rights in the street with the operator of the automobile, and that under the circumstances in this case both the pedestrian and the motorist might travel in any part of the highway they pleased, ‘but subject to all applicable statutes in the event other traffic is encountered.’ The finding contains no claim of proof that it was the custom or practice of pedestrians to walk on the left, and the court could not take judicial notice of any such custom if it existed, even though it might of the fact that persons do walk on both sides of the highway. That such a practice existed would not, as regards the jurors, be a matter of the observation of a simple fact; the determination of it could only result from a broad course of observation and comparison and a conclusion reached therefrom. To have instructed the jury to consider it if their common experience led to the belief that it existed would have been an invitation to them to consider a conclusion which in all probability would not be founded on an observation and comparison sufficiently broad properly to sustain it. The instruction given correctly and sufficiently stated the rights and duties of the parties in the use of the highway in so far as this issue was concerned and the court did not err in refusing to charge as requested.

But one other error assigned in the charge as given requires mention. This attacks the court's instructions concerning a rule of the road contained in § 544e of the 1939 Cumulative Supplement, which amended § 1639 of the General Statutes, as related to the claimed contributory negligence of the plaintiff in failing to turn to the right to permit the overtaking car of the defendants to pass. Upon this issue the court charged: ‘If you find that the plaintiff was on the hardened, that is, the travelled portion of the highway, * * * then under the statute, as applied to the facts of this case, he was obligated to yield the entire south half of the travelled portion of the road to the defendant as soon as practicable, and his failure so to do would be negligence. Now ‘as soon as practicable’ means as soon as he knew, or in the exercise of reasonable care should have known, that the defendant was going to arrive at a point where he would overtake the plaintiff.' To this charge the plaintiff made this objection, pursuant to § 156 of the Practice Book: ‘We * * * claim that as far as the application of Section 1639 is concerned * * * the court should have instructed the jury that if a pedestrian is on the highway he is not limited to going across the roadway but has the choice of going over to his right or over to the shoulder of the road on his left.’ The court described the duty of the plaintiff as being to yield the...