Fasanelli v. Terzo

• Decision Date: 26 February 1963
• Parties: Anthony FASANELLI et al. v. Nunzio TERZO. CITY OF HARTFORD v. Nunzio TERZO. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 500

189 A.2d 500

150 Conn. 349

Anthony FASANELLI et al. v. Nunzio TERZO.

CITY OF HARTFORD v. Nunzio TERZO.

Supreme Court of Errors of Connecticut.

Feb. 26, 1963.

William R. Moller, Hartford, with whom were Edmund T. Curran, Hartford, and, on the brief, J. Ronald Regnier and Robert F. Taylor, Hartford, for appellant (defendant in each case).

William R. Davis, Hartford, with whom were Pasquale R. Ierardi, Hartford, and, on the brief, Leon RisCassi, Hartford, for appellee (named plaintiff in the first case); with them, on the brief, were Frank E. Dully and Michael A. Connor, Jr., Hartford, for appellee (plaintiff city of Hartford in each case).

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

MURPHY, Associate Justice.

The plaintiff Anthony Fasanelli sustained injuries when the police cruiser which he, as a member of the Hartford police department, was operating in pursuit of a speeder collided with an automobile operated by the defendant. Fasanelli brought suit to recover damages. The city of Hartford intervened to recover for the workmen's compensation it had paid to Fasanelli. In a second action, the city sought to recover for the damage to the police cruiser. From the judgment rendered on verdicts for the plaintiffs, the defendant has appealed. For the purpose of these appeals, we shall discuss the issues in the first case only, since the judgment in the second case is dependent on the outcome of the first.

From the undisputed facts, the jury could have found the following: At about 1:15 a. m. on May 11, 1957, Fasanelli, hereinafter called the plaintiff, was driving west on Park Street in Hartford, in pursuit of an automobile going at an excessive speed, when his cruiser collided with the defendant's westbound automobile in the southerly half of Park Street as the defendant was turning left to enter Bartholomew Avenue. Both Park Street, fifty feet wide, and Bartholomew Avenue, thirty-two feet wide, are two-way streets. Bartholomew Avenue intersects Park Street only from the south. Traffic at the intersection is controlled by an overhead traffic light which was green for westbound traffic at the time. The area is well lighted by street lights. Park Street is straight and level for approximately 500 feet east of Bartholomew Avenue and has solid white lines in the center to separate the eastbound and westbound traffic lanes, and broken white lines to delineate the two traffic lanes in each direction. It was raining, and the streets were wet. There was no eastbound traffic on Park Street. Just before the collision, the speeding car passed to the right of the defendant and splashed his car with water.

In addition, the plaintiff offered evidence to prove and claimed to have proved the following: He had turned on his siren and dome light a quarter of a mile east of Bartholomew Avenue and had them in continuous operation until after the collision, when he shut off the siren. The dome light remained on, and so did the headlights, which had been lighted at all times and which cast a 200-foot beam on the highway. After the plaintiff turned on the siren and the dome light he passed two cars which had pulled to the right to let him by. He then saw the defendant's car ahead of him and astride the broken white line between the westbound lanes; the speeding car was at that time passing to the right of the defendant's car. The defendant then started to pull his car to the right and suddenly, without signaling, turned left into the path of the plaintiff's car, which was about to pass on the left. The right front of the cruiser struck the left side of the defendant's car, and the impact forced both cars across the intersection to its southwest corner. Neither car had entered the intersection before the impact, which occurred approximately ten feet east of Bartholomew Avenue and thirteen feet north of the south curbline of Park Street. The plaintiff was in pursuit of a fleeing law violator who was driving at a speed of about sixty-five miles per hour. The plaintiff was going about forty miles per hour. As his siren was sounding and the dome light was flashing, he had the right of way over the defendant, but the defendant failed to drive to the right and stop his car on the plaintiff's approach. The defendant, instead, turned to the left before reaching the intersection.

The defendant's additional claims of proof were as follows: He was on his way home, proceeding at about twenty miles an hour where thirty miles an hour was permitted, and as he approached Bartholomew Avenue he put on his signal light for a left turn. The speeding car passed him on his right. He looked into his rear-view mirror, saw no red lights and heard no siren. He was close to the center of the road. The collision occurred while the plaintiff was passing the defendant to the left of solid white lines and was passing within 100 feet of an intersection. There was room for the plaintiff to pass to the right of the defendant without danger of collision. The plaintiff was operating his car with only the parking lights on.

The defendant has filed an assignment of errors, claiming error in the denial of the motion to set aside the verdict, in the refusal to charge as requested, in the charge as given, in certain rulings on evidence, and in the finding. Many of the claimed errors are too trivial to deserve discussion. This is particularly true of most of the twenty specific exceptions taken to the charge. The attempted anatomical dissection of the charge at the conclusion of its delivery detracted from the force of the exceptions which had merit and by which errors in the charge could have been corrected if those exceptions had not been submerged in the inconsequential. We devote our attention to the exceptions assigned as error which have merit and to certain rulings on evidence.

Basically, the charge as given included the material portions of the defendant's requests to charge. The failure of the court to charge in the exact language of the requests does not constitute error. Jacobs v. Swift & Co., 141 Conn. 276, 280, 105 A.2d 658. Under the specifications of negligence in the complaint and of contributory negligence in the special defense, as well as the claims of proof which the parties maintained had been established by the evidence, it was necessary for the court to read to the jury the applicable portions of a number of statutes. In the main, the charge substantially covered the questions of law involved. Its fault lay in an inadequate application of the many seemingly inconsistent statutory requirements to the conflicting facts claimed by the parties. It was of little assistance to a jury of laymen to learn, without being shown how the matter was related to the facts, that one statute required a driver to pull to the right and stop at the sound of a police car siren, another statute required him to make a left turn from the part of the right side of the highway nearest the center line, and still another statute in certain circumstances permitted overtaking traffic to pass him on his right.

The plaintiff relied mainly on the right of way to which he claimed he was entitled under § 14-283 of the General Statutes and on the defendant's duty under that statute to drive as near as practicable to the right side of the highway and stop. After reciting the pertinent provisions of § 14-283, the court went on to say: 'Pursuant to this statute, the operator of a police cruiser is granted the right of way over all or public way, and pursuant to this statute or public way, and pursuant to this statute the driver of a private passenger vehicle must immediately drive or operate his vehicle to the right side of the highway and grant the way to the emergency vehicle with its bell or siren sounding or operating. If you find that the defendant Terzo failed to grant the right of way to the emergency, that is, the police, cruiser in the manner prescribed by the statute, then this would constitute a violation of the statute and such a violation would be negligence as a matter of law as I have already indicated to you.' The effect of this instruction was to indicate to the jury that the statute imposed an absolute duty on the defendant to turn to the right, and to eliminate from the jury's consideration the practicability of the defendant's pulling over to his right to allow the plaintiff to pass on his left--if the jury believed the claim of the defendant that he was already in the left westbound lane preparing to make a left turn for which he was signaling, all in accordance with the provisions of §§ 14-241(b) and 14-242(a), (b). Thereafter, the court read the following portion of § 14-230, on which the plaintiff also relied: 'Upon all highways, each vehicle shall be driven upon the right, except (1) when overtaking and passing another vehicle proceeding in the same direction, (2) when overtaking and passing pedestrians, parked vehicles, animals or obstructions on the right side of the highway [or] (3) when the right side of a highway is closed to traffic while under construction or repair.' The court failed to include in its instruction a further exception in the statute which applies when a vehicle is preparing for a left turn at an intersection.

The defendant has assigned error in the limitations placed by the...