Fitzgerald v. Savin

• Decision Date: 27 July 1934
• Citation: 174 A. 177,119 Conn. 63
• Court: Connecticut Supreme Court
• Parties: FITZGERALD v. SAVIN et al.

174 A. 177

119 Conn. 63

FITZGERALD v. SAVIN et al.

Supreme Court of Errors of Connecticut.

July 27, 1934

Appeal from Superior Court, Hartford County; John A. Cornell, Judge.

Action by Ashby J. Fitzgerald against Abraham I. Savin and another for damages for injuries by the defendants' automobile alleged to have resulted from the negligence of the defendants. Verdict for the plaintiff, motion to set aside denied, and judgment entered upon the verdict, from which the defendants appealed.

No error.

James W. Carpenter and Charles S. House, both of Hartford, for appellants.

Charles J. McLaughlin, of Hartford, and Morris Lubchansky, of New London, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, Judge.

There is no essential dispute as to the following facts: Main street, in the city of Hartford, runs nearly north and south from an intersection formed by the entrance into it of Charter Oak street from the east, and Buckingham street from the west. About 6 o'clock in the afternoon of March 9 1932, the plaintiff was standing on the sidewalk at the northerly corner of Main and Buckingham streets, and at the same time the defendants' car was being driven northerly on the east side of Main street by the defendant Anna N. Savin, who was accompanied by her husband, the defendant Abraham I. Savin. She was not a licensed driver, but claimed to have been operating the car under instruction by her husband in its use.

After the defendants had entered and proceeded one-half or two-thirds of the distance through the intersection, their car suddenly swerved to the left from the northerly direction it had been taking, and proceeded in a curve westerly toward Buckingham street, but failed to turn sufficiently to allow it to enter that street, and instead went over the curb at the northwest corner of the intersection and struck the plaintiff, with injurious results to him.

The plaintiff claimed the defendants were negligent in maintaining an unreasonable speed under the circumstances, in operating on the wrong side of the road, in failing to reduce the speed of the car or stopping it before striking the plaintiff, and in failing to keep the car under control. The defendants denied all negligence, and contended that the turn to the left was made necessary by the sudden appearance of a car which was driven west in front of their own, making a collision imminent, and that in meeting the emergency thus created, the defendant driver was at most guilty of nothing more than an error of judgment. The jury returned a verdict for the plaintiff for $8,000 damages, which the defendants moved the trial court to set aside as contrary to the law and the evidence and excessive, and they have assigned as error the denial of that motion, though the claim that the verdict was excessive is not now pursued by the defendants' brief. There was a sharp conflict of testimony as to the presence in the intersection of a car which caused the defendants' car to swerve as claimed by them; three eyewitnesses called by the plaintiff denying that any such car was in the intersection at the time. With this conflicting testimony before them it was for the jury to determine the fact, and it was manifestly open to them to decide that there was no such car or such emergency as claimed by the defendants. Even if the jury had found that the claimed emergency was a fact, there was an ample amount of further evidence from which they could have reasonably concluded that the defendant driver had met and passed it in safety, and that her subsequent conduct in driving at an unreduced speed for 70 feet or more and onto the sidewalk was not that of a reasonably prudent person under the circumstances.

Further errors were assigned for failure of the trial court to add certain statements to the finding as to what the defendants offered evidence to prove and claimed to have proved. So far as they relate to claimed operative facts not already in the finding, with reference to what occurred before the turn to the left, we cannot find their omission to have been prejudicial to the defendants in their attack upon the charge, to test which is the principal purpose of the finding. These requests also contain matter calculated to show that the defendants claimed before the jury that there was a second emergency following the first, in that after avoiding the collision with the other car the defendant driver was met by a standing trolley car and other obstructions. This attempt to set up a second emergency to explain her conduct in driving the next 70 feet after the first emergency is apparently now made for the first time. The finding in a jury case is designed to present the claims of the parties as to the facts proved, for the purpose of testing the correctness of the charge and the rulings of the court. It serves much the same purpose as a statement of the claims of the party upon the trial in a finding in a court case. It would be manifestly unfair to permit the insertion in a finding in a jury case of claims not actually made at the trial and then attack the charge upon...