Giambartolomei v. Rocky De Carlo & Sons, Inc.
| Decision Date | 12 June 1956 |
| Citation | 143 Conn. 468,123 A.2d 760 |
| Court | Connecticut Supreme Court |
| Parties | Nazzareno GIAMBARTOLOMEI v. ROCKY DE CARLO AND SONS, Inc., et al. Supreme Court of Errors of Connecticut |
Richard F. Oburchay, Bridgeport, with whom was George N. Foster, Bridgeport, for appellants (named defendant et al.).
David M. Reilly, Jr., New Haven, with whom, on the brief, was David M. Reilly, New Haven, for appellant (defendant Nicholas Barzetti, administrator).
John V. Donnelly, Bridgeport, with whom was Joseph Donnelly, Ridgefield, for appellee (plaintiff).
Before INGLIS, C. J., and WYNNE, DALY, BALDWIN and O'SULLIVAN, JJ.
This action was brought by the plaintiff against Rocky DeCarlo and Sons, Inc., hereinafter called the corporation; its agent, Russell McKeithen; and Nicholas Barzetti, administrator of the estate of Charles Barzetti and hereinafter called the administrator. The plaintiff sought recovery for personal injuries alleged to have been sustained as the result of the negligence of Charles Barzetti and the defendant McKeithen. The jury returned a verdict for the plaintiff. From the judgment rendered thereon all the defendants have appealed. The administrator claims that the court erred in refusing to charge as requested by him and in denying his motion to set aside the verdict. The other defendants assign as error the court's denial of their motion to set aside the verdict. By stipulation this appeal is determinative of the issues in another case in which the same questions of law are presented.
The plaintiff offered evidence to prove the following facts: On January 22, 1952, at about 2:15 p. m., he was a passenger in the front seat of an automobile owned by Charles Barzetti, who was driving it in a northerly direction on Wilson Avenue, a public highway in norwalk. McKeithen was operating the corporation's large dump truck in a southerly direction on Wilson Avenue. At the scene of the collision, Wilson Avenue has an asphalt surface eighteen feet wide and shoulders each two feet wide. A short distance south of the place of the accident, the highway is crossed at grade by two sets of railroad tracks. South of the tracks, the highway is straight for a distance of more than 500 feet. North of the tracks, it curves to the northeast. Shortly before the collision freezing rain and sleet had produced an icy and slippery condition on the highway. This hazardous road condition was made worse by snow, which was falling at the time of the accident. As the Barzetti car approached the scene, it was being driven on the easterly side of the highway at a speed of twenty miles per hour, and it continued at that speed until the collision became imminent. The truck, as it approached, was proceeding at a fast rate of speed. The plaintiff saw the truck when it was between 100 and 200 feet away. It was in the middle of the highway and completing the curve when it skidded toward the east side of the road. As the Barzetti car came upon the railroad tracks, it skidded toward the middle of the road. The plaintiff shouted to Barzetti, 'Charlie, pull all you can, they going to hit.' The two vehicles collided a short distance north of the tracks with great force. The truck came to a stop on the west side of the highway eighteen feet north of the tracks, with its right wheels on the shoulder of the road and its left wheels on the paved portion. The Barzetti car was spun around by the force of the collision and came to a stop facing south and parallel with the truck. The force of the impact seriously damaged the entire front part of the Barzetti car and the left front part of the DeCarlo truck. Both vehicles were being driven at speeds which were excessive in view of the width of the highway, the curve, the icy and slippery condition of the road and the falling snow. The plaintiff received serious injuries as a result of the collision. Charles Barzetti also received serious injuries in the collision and subsequently died.
The corporation and McKeithen offered evidence to prove that the truck, equipped with 'snow tread' tires, was proceeding southerly at a speed of about twenty-five miles per hour; that as it came around the curve McKeithen saw the Barzetti car eighteen or nineteen feet away, proceeding at about the same speed as that of the truck; that Barzetti had the wheels of his car turned to his right; that the Barzetti car was in a skid; that it crossed over to its left and collided with the truck, which had been brought to a stop on the west side of the road; and that the truck was at all times on its own side of the road.
The administrator offered evidence to prove that Charles Barzetti was, at all times, operating his car on his own side of the road; that it was not traveling fast; that McKeithen had driven the truck on the inside of the curve and it was on the east side of the highway; that Barzetti was faced with an emergency created solely by McKeithen and that the Barzetti car came to rest completely on its own right-hand side of the road.
The administrator contends that the trial court erred in not charging, as requested, that if the jury should find that 'Barzetti crossed over the center line of the road involuntarily and without fault * * * such crossing would not be in violation of the rules of the road.' It is clear that the administrator, in using the words 'involuntarily,' 'crossed' and 'crossing,' was referring to the course of travel of the car occasioned either by its skidding or the emergency claimed to have been created solely by McKeithen. The court, in its charge, stated that if the skidding was not due to any negligent act on the part of the operator, then the fact that the car skidded would not necessarily establish negligence; that if the operator acted as a reasonably prudent person would under the circumstances, he was not to be held negligent merely because the car skidded and caused damage, and that if the operator was not negligent in the operation of his vehicle up to the moment the car skidded, then he could not be held responsible unless his conduct after the car had skidded did not measure up to that of a reasonably prudent person under the circumstances. After the jury had retired, counsel for the administrator stated: '[T]he only exception I take is with regard to not charging on emergency. * * *' The court then recalled the jury and instructed them that an emergency is a situation which arises suddenly, without warning and which could not reasonably be foreseen by the reasonably prudent driver, and that if an emergency is created, but does not result from the driver's negligent operation up to the time of its creation, then the operator cannot be held responsible for the resultant accident unless his conduct after the emergency arises fails to measure up to that of a reasonably prudent person under the circumstances.
The court did not adopt the language in which the request to charge was couched. Nevertheless, error may not be predicated upon the failure of the court to...
To continue reading
Request your trial
-
Griffin v. Nationwide Moving and Storage Co., Inc.
...176 Conn. 415, 418, 407 A.2d 1005 (1979); Raia v. Topehius, 165 Conn. 231, 235, 332 A.2d 93 (1973); Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 473, 123 A.2d 760 (1956). It is settled that the trier of fact has the right to accept part and disregard part of the testimony of......
-
Birgel v. Heintz
...Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596; Butler v. Steck, 146 Conn. 114, 117, 148 A.2d 246; Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760; McWilliams v. American Fidelity Co., 140 Conn. 572, 575, 102 A.2d 345; Prosser v. Richman, 133 Conn. 253, ......
-
Ford v. Blue Cross and Blue Shield of Connecticut, Inc.
...and heard the testimony, is a powerful argument for sustaining the action of the trial court. Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760 [1956].' [Id.]; Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 545, 116 A.2d 167 [1955]; Zullo v. Zullo, 13......
-
State v. Griggs
...those issues. Lucier v. Meriden-Wallingford Sand & Stone Co., [supra, 153 Conn. at 425, 216 A.2d 818]; Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 472, 123 A.2d 760 [1956]; State v. Hayes, 127 Conn. 543, 594, 18 A.2d 895 [1941]." (Internal quotation marks omitted.) See also......