Floyd v. Fruit Industries, Inc.

• Court: Supreme Court of Connecticut
• Writing for the Court: Before WYNNE; KING
• Citation: 63 A.L.R.2d 1378,136 A.2d 918,144 Conn. 659
• Parties: , 63 A.L.R.2d 1378 Margaret M. FLOYD, Administratrix (Estate of Jewell E. Floyd) v. FRUIT INDUSTRIES, Inc., et al. Supreme Court of Errors of Connecticut
• Decision Date: 03 December 1957

Page 918

136 A.2d 918 144 Conn. 659, 63 A.L.R.2d 1378 Margaret M. FLOYD, Administratrix (Estate of Jewell E. Floyd)
v.
FRUIT INDUSTRIES, Inc., et al. Supreme Court of Errors of Connecticut. Dec. 3, 1957.

[144 Conn. 662]

Page 921

John J. Hunt, Bridgeport, with whom was Grant Titsworth, Darien, for appellant-appellee (plaintiff).

George F. Lowman, Stamford, with whom were Adrian W. Maher, Bridgeport, and John F. Spindler, Stamford, for appellant-appellee (defendant Ruscoe).

Joseph L. Melvin, Stamford, with whom was Robert F. Quimby, Stamford, for appellees (named defendant et al.).

Before [144 Conn. 659] WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ.

[144 Conn. 662] KING, Associate Justice.

This was an action claiming damages for the instantaneous death of the plaintiff's decedent. He was killed while he was a passenger in a motor car owned and operated by the defendant Earl S. Ruscoe which collided with a tractor-trailer truck owned by the defendant Fruit Industries, Inc., and operated by the defendant Sidney L. Masters. Since Masters' agency was admitted in the pleadings, it is unnecessary further to consider, in this opinion, the defendant owner of the truck. The collision occurred in the town of Darien in or near an intersection of the westbound lane of the Boston Post Road, along which Masters' truck was proceeding, and a cross-over from the eastbound lane. Ruscoe's Buick convertible was proceeding in a northerly direction on the crossover. Masters claimed that Ruscoe went through a stop sign and was in motion at the time of the collision, while Ruscoe claimed that his car was stationary with its front end about at the southerly edge of the cement portion of the westbound lane of the Post Road. The jury returned a plaintiff's verdict in the amount of $100,000 against the defendant Ruscoe only, and a verdict in favor of the defendants Fruit Industries, Inc., and Masters. Both the plaintiff and the defendant Ruscoe appealed.

[144 Conn. 663] The plaintiff has made a wholesale attack on the finding. Since it is substantially adequate for the purpose of enabling this court to review the basic assignments of error, no material changes will be made. Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760; Fairbanks v. State, 143 Conn. 653, 655, 124 A.2d 893.

The court prefaced its instructions on the law governing the respective motor vehicles at and approaching the intersection by stating that it had come to 'a very important element in this case and possibly the most important element.' Masters was approaching the intersection from Ruscoe's right and claimed a statutory right of way. Peckham v. Knofla, 130 Conn. 646, 649, 36 A.2d 740; McNaught v. Smith, 127 Conn. 450, 454, 17 A.2d 771; Clement v. Del Vecchio, 140 Conn. 274, 278, 99 A.2d 123. The situation was further complicated by the presence of a stop sign governing traffic about to enter the westbound lane of the Post Road from the south as was Ruscoe. One of the plaintiff's specifications of negligence charged that Ruscoe failed to stop in accordance with the mandate of that sign under the rule of cases such as Clement v. Del Vecchio, supra. In other specifications, the plaintiff charged Ruscoe with negligence as to lookout and control, in failing to grant Masters the right of way, and in using excess speed through the intersection. The plaintiff's specifications of Masters' negligence included charges of negligence as to the use of a statutory right of way, under the rule of cases such as Jackson v. Brown, 106 Conn. 143, 146, 137 A. 725, and Mulvey v. Barker, 138 Conn. 551, 554, 86 A.2d 865, and as to speed, control, lookout, failure to warn, failure to stop, and reckless driving. It is obvious that in considering these specifications of negligence the [144 Conn. 664] jury had

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to keep in mind the law as to the statutory right of way at an intersection. There was no error in the court's pointing out to the jury the importance of this question. It could hardly have performed its duty had it not done so.

The plaintiff also assigned error in the court's claimed failure to grant a request to charge that '[i]n situations involving great danger, great care is required.' The court, after defining common-law negligence generally, charged that 'in a situation of danger the care must be proportionate to the danger.' This was a sufficient compliance with the request and was better phrased.

The defendant Ruscoe assigned as error the court's failure to give a charge, as requested, covering his claim that Masters had violated § 2425 of the General Statutes, which prescribes the number of hours a driver of a commercial vehicle may operate it without a period of rest. This assignment of error, however, was not touched on in Ruscoe's brief and is treated as abandoned. Somers v. Hill, 143 Conn. 476, 480, 123 A.2d 468.

In other assignments of error the plaintiff and the defendant Ruscoe complain of the exclusion of certain questions asked of the witness Jonathan A. Karas, a professor of physics who had had experience in analyzing automobile accidents to determine their causes, effects and conditions. He was offered as an expert by the plaintiff on matters involving the speed, movement and courses of the motor vehicles in the present case as computed or deduced from claimed facts such as marks, or the absence of them, on the highway. The court permitted the witness to testify on direct examination that if it were assumed that the vehicles, after the impact, had slid straight ahead in the truck's direction of [144 Conn. 665] travel, he could calculate with reasonable accuracy, from certain data as to the coefficient of friction of rubber and the road surface which he possessed, that the speed of the truck at the time of impact was at least 34.2 miles per hour. He was then asked as to the effect on this estimate of certain sidewise movements which the truck apparently had made after the impact, and of the fact that after impact the Buick was dragged along with the truck until both came to rest, and was allowed to state that the estimated speed of the truck would be increased by these factors. He was not allowed to testify as to the amount of the increase in miles per hour, nor to answer certain other questions concerning the probable and possible courses, speeds, movements and positions of the vehicles.

The court did not exclude this testimony on the ground that it was basically not a proper subject for expert testimony; Taylor v. Town of Monroe, 43 Conn. 36, 44; Stephanofsky v. Hill, 136 Conn. 379, 383, 71 A.2d 560; State v. Grosso, 139 Conn. 229, 233, 93 A.2d 146; nor on the ground that the witness lacked the necessary general qualifications in the field in which he was asked to testify. Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370, L.R.A.1915E, 959; Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600; Rogoff v. Southern New England Contractors Supply Co., 129 Conn. 687, 691, 31 A.2d 29; State v. Nelson, 139 Conn. 124, 128, 90 A.2d 157. The finding makes it clear that the real ground of exclusion was that none of the hypothetical questions to which objections were sustained was properly framed in the light of the evidence so as to be likely to do otherwise than confuse the jury, and the court intimated that in view of the uncertainty as to the courses and movements of both the truck and the attached [144 Conn. 666] Buick, it would probably be impossible to frame a satisfactory hypothetical question. While at one point the court indicated that it was following the case of Stephanofsky v. Hill, supra, there is nothing to indicate that had counsel been able to frame a satisfactory hypothetical question it would have been excluded. The determination of the admissibility of a hypothetical question, at least except in extreme cases, is not to be made by the application

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of any rule of thumb. Goodrich Oil Burner Mfg. Co. v. Cooke, 126 Conn. 551, 554, 12 A.2d 833. Rather, it calls for the exercise of a sound discretion as to whether the question, even though it does not contain all of the facts in evidence, presents the facts in such a manner that they bear a true and fair relationship to each other and to the whole evidence in the case; Barber's Appeal, 63 Conn. 393, 409, 27 A. 973, 22 L.R.A. 90; Jackson v. Waller, 126 Conn. 294, 306, 10 A.2d 763; is not so worded as to be likely to mislead or confuse the jury; and is not so lacking in the essential facts as to be without value in the decision of the case. Goodrich Oil Burner Mfg. Co. v. Cooke, supra; Johnson v. Toscano, 144 Conn. 582, 591, 136 A.2d 341. The court did not abuse its discretion in excluding the questions.

After the witness Karas had testified on direct examination to the limited extent hereinbefore indicated, he was cross-examined on behalf of the defendant Ruscoe, who complains of the exclusion of one question. This in effect asked how far the truck would skid, with ten of its twelve wheels locked, in a straight-line skid without regard to any fact other than the coefficient of friction on the road. The court, on objection, excluded the question. Our rule as to hypothetical questions on cross-examination of an expert witness is clearly stated in Livingstone[144 Conn. 667] v. City of New Haven, 125 Conn. 123, 127, 3 A.2d 836. The purpose of such cross-examination is to test the credibility of the witness and the accuracy and reasonableness of his direct testimony. There...