Ezzo v. Geremiah
| Decision Date | 14 June 1928 |
| Citation | 142 A. 461,107 Conn. 670 |
| Court | Connecticut Supreme Court |
| Parties | EZZO v. GEREMIAH. |
Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.
Action by Modestino Ezzo against Albert Geremiah to recover damages for personal injuries alleged to have been caused by defendant's negligence. Tried to the jury. Verdict and judgment for defendant, and plaintiff appeals. Error, and new trial ordered.
Charles S. Hamilton, of New Haven, and Joseph N Manfreda, of Wallingford, for appellant.
Charles J. Martin and Walton E. Cronan, both of New Haven, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
Upon the trial to the jury, the plaintiff offered evidence to prove: On June 8, 1925, the defendant owned an automobile which he kept for family purposes, and his son and agent by his permission was driving it in Wallingford northerly along North Colony street, which at this point was paved with macadam 18 feet in width, with a dirt shoulder 2 1/2 feet on either side and sloping down to the abutting properties. The plaintiff was also driving his car in the same direction on this street and in the rear of defendant's automobile. The plaintiff, intending to pass defendant's car on the left, extended his left arm to indicate he was turning out on that side, blew his horn, and started ahead. As he was about to pass the automobile of the defendant, leaving room for defendant's car to travel if it kept on the right of the center of the highway, the driver of defendant's car turned suddenly to the left, bringing the left front wheel of his car in contact with the rear right wheel of the car of the plaintiff, with a good deal of forward pushing force, thereby causing the plaintiff's car to turn sharply around in the street to the left (west), and to get out of plaintiff's control, and to run off of the street and come in contact with a telephone pole which stood near the west side of the street, and thence to run off the highway on the left-hand or west side and into a field adjacent to the highway, when it overturned, practically demolishing it into junk, for which it was subsequently sold.
The defendant offered evidence to prove: That plaintiff's car was being operated at a high rate of speed estimated at 30 miles an hour, and, while he was passing on the left of other automobiles on this street, plaintiff's car was headed directly for a telephone pole on the left or west side of this street and its left rear wheel came in contact with the side of the telephone pole next to this street, knocking a large splinter therefrom and causing the car of the plaintiff to swerve towards the east and into the highway, where it collided with the car operated by defendant's son, which was east of the center of the highway and headed north, and thereafter the car of the plaintiff continued to turn and ultimately landed upside down off the westerly side of the paved portion of the macadam roadway. The car operated by defendant's son, after being struck by the plaintiff, went on a short distance, tilted on its right-hand side, and turned over. The right front and rear mudguards of the plaintiff's car were not dented or damaged, and the right-hand headlight glass was not broken. The left front mudguard of the plaintiff's car was badly damaged, bent, and dented, and the glass in the left front headlight was broken and shattered. The left forward wheel of the defendant's car had the tire ripped off. The left front and rear mudguards were dented, but not as severely as those on the plaintiff's car.
We will confine our consideration of the errors assigned to those in the charge and in the rulings on evidence which we deem important, or which are likely to arise upon the new trial. There were two diametrically opposing versions of how this accident occurred; the plaintiff's, that as he was passing to the left of the defendant's car, after having given due notice of his purpose so to do, the defendant turned his car to the left and the left front wheel of his car came in contact with the right rear wheel of the plaintiff's car, with a strong pushing force. The court, in effect, charged that, if this had occurred, the momentum of the plaintiff's car would have necessarily carried it to the right. This was exactly contrary to the testimony and claim of the plaintiff. It tended strongly to support the defendant's version of the cause of the accident, that the plaintiff's car, as it was passing to the left, because of its speed and plaintiff's negligence, ran into a telegraph pole just west of the left-hand side of this roadway, and as a consequence was catapulted to the right, where it collided with defendant's car, which was east of the center line of the roadway; that is, on the right-hand side of the traveled way.
If the jury accepted the court's statement, it reached its conclusion upon the consideration of a fact which was vitally important, but which neither the evidence nor the physical facts supported. The court was right in attempting to make plain the issues of the case and what it regarded as the facts in evidence. It should not have instructed the jury that the facts disclosed a physical demonstration of the course of the plaintiff's car unless it was entirely clear that no other result could follow. If doubt exists as to such a matter, it should be left to the jury to find as a fact. The court may state its opinion that, if the jury find certain facts proven, they will constitute a physical demonstration of a fact. It should not charge that they will establish the fact incontrovertibly, unless it is entirely clear that no other conclusion is reasonably possible. As a result of this accident the plaintiff claimed his car was so damaged that it had become mere junk; the defendant claimed that the marks upon the plaintiff's car tended to disprove the plaintiff's claim as to the manner in which these cars collided. The court emphasized the significance of the marks upon the plaintiff's car and added:
" And there again the actual condition of these cars is very material because that is something which did not forget and is not subject to the frailties of human recollection."
The charge practically assumed as an established fact in the case this claim of the defendant upon a strongly contested and highly material point in the case. We cannot hold this to have been harmless error.
The court further charged that:
" When a man starts out upon a road or highway like that to pass another car, then it is that great care would ordinarily be required."
Assuming a roadway of reasonable width, such as this, for a car to pass, the giving of reasonable notice by the driver of the car desirous of passing to the car ahead, and no other unusual conditions of traffic or roadway, the driver attempting to pass is not required to use more than ordinary care in the driving of such an instrumentality. He would not be required, ordinarily, to use great care. The standard of ordinary care will not become great care unless the circumstances present a case of more than ordinary danger in passing the car ahead. And whether they do or not will be a question of fact for the jury, unless the circumstances be so exceptional as to make of it a question of law, which was not this case. In this case the court charged:
" Was his conduct, in what he did there, swerving as he did, running into a telegraph or telephone pole, confessedly, the conduct of an ordinarily prudent man?"
This assumes, erroneously, that the jury might find the plaintiff negligent, whether he came in contact with the pole as he claimed, or as the defendant claimed, whereas, if they found the contact was made as the plaintiff claimed, there could be no negligence upon his part in that act, but, if they found the contact made, as defendant claimed, his negligence would be all but conclusively proved.
The court also charged that the plaintiff " should conduct himself as a prudent man would do under the circumstances," and then added, " and that he should use good judgment and make good use of his senses." The accepted rule is that he should conduct himself as a reasonably prudent person would under like circumstances. He is not required to act as an absolutely prudent man would, but as a reasonably prudent man would. He is not necessarily required to use good judgment or to make good use of his senses; he is required to use such intelligence, understanding, judgment, and care as the reasonably prudent person would use under like circumstances.
One other instruction the appellant especially relies upon. The driver of the defendant's car was his son, and in what he was then doing his agent. He was in the courtroom and was not called as a witness by the defendant, nor was explanation furnished for the failure to...
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State v. Greene, 13373
...by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.' " Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). It is logical to conclude that if a party does not call an available witness who presumably would have favorable testimony, t......
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...be unfavorable to the party's cause.' " Secondino v. New Haven Gas Co., supra, 147 Conn. 675, 165 A.2d 598, quoting Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). The party against whose cause an unfavorable inference is claimed may, of course, offer evidence to explain the failur......
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...produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause." Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). "There are two requirements for the operation of the rule: The witness must be available, and he must be a witness who......
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...produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.' Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). 'There are two requirements for the operation of the rule: The witness must be available, and he must be a witness who......