Frisbie v. Schinto

• Decision Date: 05 November 1935
• Citation: 120 Conn. 412,181 A. 535
• Court: Connecticut Supreme Court
• Parties: FRISBIE v. SCHINTO et al.

181 A. 535

120 Conn. 412

FRISBIE v. SCHINTO et al.

Supreme Court of Errors of Connecticut.

November 5, 1935

Appeal from Superior Court, Fairfield County; Alfred C. Baldwin Judge.

Action for damages by Barbara Louise Frisbie, administratrix against Anthony J. Schinto and another for injury and death of the plaintiff's decedent, alleged to have been caused by the negligence of the defendants, brought to the Superior Court and tried to the jury. Verdict for the plaintiff, which the court, upon motion, set aside, and the plaintiff appeals.

No error.

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

John Keogh, of South Norwalk, and Sydney C. Perell, of Stamford, for appellant.

Stanley T. Jennings, of Westport, John T. Dwyer, of Norwalk, and Earl H. Jagoe, of Westport, for appellees.

HAINES, Judge.

The trial court in setting aside the verdict stated three grounds for doing so, namely: That the testimony of one of the plaintiff's witnesses was false and unworthy of belief; that the charge was erroneous in that it failed to contain reference to a certain statute claimed to be essential to a proper consideration of the issues, and was further erroneous in submitting the case to the jury on the possible theory of supervening negligence when the conditions for its operation did not appear in the evidence.

The memorandum of decision contains a long review of the testimony of plaintiff's witness, Hutchins, who claimed he was an eyewitness of the accident, and it reaches the conclusion that " witness Hutchins was not worthy of belief; his story in its essential features was ‘ built up’ ; and perjury " " ; while the defendant operator with the other two in the car with her " were truthful and honest witnesses."

Reading the entire record of the evidence which was before the jury, we cannot hold that the jury acted unreasonably if they credited the testimony of Hutchins. We find nothing inherently incredible in his testimony and it is supported in several important particulars by other evidence. It did conflict sharply in some points with the testimony of the defendant driver and her companion, who was the other defendant's wife, and of the latter's maid. They had a manifest and vital interest in the result, while Hutchins was a nonresident living in New York, and it does not appear that he was other than a stranger to all parties. The credibility of these witnesses was a question for the jury. " Where there is testimony sufficient to support a verdict, a trial court is not at liberty to substitute its own judgment that it is incredible for the contrary conclusion of the jury, unless that conclusion is one which could not have been reasonably reached or is not legally permissible. Only by adherence to this principle can be preserved the right of a jury to determine the credibility of testimony and to decide where as between conflicting evidence the truth lies." Glazer v. Rosoff, 111 Conn. 707, 708, 709, 151 A. 165; Fallco v. Byrolly Transportation Co., 109 Conn. 500, 501, 147 A. 16: Canfield v. Sheketoff. 104 Conn. 28, 30, 132 A. 401. The record does not indicate that the jury were improperly influenced in any way in reaching their conclusion.

The memorandum of decision indicates that the trial court gave much weight to its observation of the witness upon the stand. We must recognize, however, that the twelve members of the jury were afforded the same opportunity and were entitled to rely upon their own conclusions honestly reached. They were entitled to credit all or any part of the testimony which they reasonably felt to be true. We would hesitate to say that the jury could not properly have found the defendant negligent even if they discredited some or all of the testimony of Hutchins. We cannot sustain the trial court in setting aside the verdict on the first ground.

The second ground stated is the failure of the charge to call attention to and explain General Statutes, § 1598(f), which appears in the footnote.^[1] It was conceded that the decedent was struck by the defendant's car while he was engaged in the removal of a flat tire from the left rear wheel of the truck. He had parked the truck with its left wheels on the concrete roadway and the truck at all times was thereafter without any lights. It was the duty of the court to call the attention of the jury to this statute which requires lights under those circumstances upon a parked car. Since the action of the decedent clearly violated the provisions of this statute, the jury could have found him negligent in so doing, and if they thereafter found that that negligence was a proximate cause of the injury, a verdict for the defendant would have been required. The statute is intended to protect other users of the highway and a violation of it is negligence per se. " When the Legislature establishes a rule of conduct by statute, and its purpose in so doing is to protect others from injury, a violation of that rule of conduct constitutes negligence." Gonchar v. Kelson, 114 Conn. 262, 264, 158 A. 545; Murphy v. Way, 107 Conn. 633, 638, 141 A. 858; Syssa v. Heminway, 106 Conn. 499, 501, 138 A. 223.

The complaint states as grounds of recovery both negligence at common law and supervening negligence. The general verdict leaves it uncertain upon which of these grounds of recovery the verdict was reached. Formerly, we held that under such circumstances, if no interrogatories had been filed and it appeared that the general verdict could be sustained on either ground, the verdict was good. Aaronson v. New Haven, 94 Conn. 690, 697, 110 A 872, 12 A.L.R. 328; Worth v. Dunn, 98 Conn. 51, 63, 118 A. 467; Wladyka v. City of Waterbury, 98 Conn. 305, 313, 119 A. 149; Callahan v. Jursek, 100 Conn. 490, 493, 124 A. 31. Our decision in Ziman v. Whitley, 110 Conn. 108, page 116, 147 A. 370, 374, however, limited the application of this doctrine by the following language: " Where *** different specifications of fact are alleged in support of one essential right, as where various grounds of negligence are alleged as a basis for a recovery for injuries resulting from a particular accident, it is the sounder policy to permit an appellant to take advantage upon appeal of errors affecting one specification of negligence only, even though no...