Gosselin v. Perry

• Decision Date: 12 March 1974
• Citation: 348 A.2d 623,166 Conn. 152
• Court: Connecticut Supreme Court
• Parties: Rita GOSSELIN et al. v. Robert P. PERRY.

Page 623

348 A.2d 623

166 Conn. 152

Rita GOSSELIN et al. v.Robert P. PERRY.

Supreme Court of Connecticut.

March 12, 1974.

Vincent J. Trantolo, Hartford, for the appellants(plaintiffs).

Albert Zakarian, Hartford, for the appellee(defendant).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.MacDONALD, Associate Justice.

The plaintiffs, Alfred Gosselin, his wife Theresa, and his children, Alfred, Jr., James, Michael, Rita and Yvette Gosselin, were injured when an automobile owned and operated by the defendant collided with the plaintiffs' pickup truck with attached trailer on route I-91 in the town of Windsor Locks, the accident having occurred on the Dexter Coffin bridge.After a trial to a jury a verdict was rendered in favor of the defendant and the plaintiffs have taken this appeal from the judgment rendered thereon.

The plaintiffs have assigned as error several portions of the court's charge to the jury, the court's denial of their motions to set aside the verdict and for a directed verdict and one paragraph of the finding, ¹ which is not subject to correction.

We consider first the assignments of error addressed to the charge.The correctness of the charge is determined by the claims of proof of the parties.Practice Book§ 635;Raia v. Topehius, 165 Conn. 231, 232, 332 A.2d 93.The plaintiffs offered evidence to prove and claimed to have proved the following facts: The plaintiffAlfred Gosselin was on July 3, 1969, the owner of a 1967 Chevrolet pickup truck.Located in the bed of the truck was a camper and, on the night in question, a 1967 Shasta trailer was being towed behind the truck.At approximately 9:25 p.m. on that date the plaintiffAlfred Gosselin was operating the pickup truck and towing the trailer northerly on route I-91 in the town of Windsor Locks at a point on the Dexter Coffin bridge.Each of the other plaintiffs was present, Theresa and Michael in the cab of the truck and Rita, Yvette, James and Alfred, Jr., in the camper in the bed of the truck.The trailer in the rear of the truck was equipped with seven yellow running lights across the top front of the trailer and six red running lights at the rear of the trailer, all of which were on and functioning properly at the time of the collision.Traveling north from Hartford, route I-91 as far as the Dexter Coffin bridge is a two-lane limited access highway.At or near the beginning of the bridge the highway becomes three lanes wide, the extreme right-hand lane being an acceleration and deceleration lane for entering and exiting traffic.Each of the lanes is about twelve feet wide.At the time in question it was extremely dark and a heavy rain had commenced to such an extent that plaintiffAlfred Gosselin's visibility was impaired so substantially that he could not see where he was going.He slowed down on the bridge and pulled over to the right as far as possible.He did not know, because of the poor visibility, that he had brought his vehicle to rest on a bridge.When the vehicle had been brought to a stop Rita Gosselin exited the rear of the camper and walked to the front of the truck between the truck and the bridge abutment for the purpose of taking her son Michael from the cab of the truck to the camper.When Rita had reached the cab of the truck a collision occurred in the rear of the trailer forcing the truck and the trailer forward and throwing her to the ground.

The plaintiffs also claimed to have proved the following: The defendant had been operating his vehicle to the rear of the plaintiffs' truck northbound on route I-91 at fifty to fifty-five miles per hour in the extreme right-hand lane.He saw the red lights on the rear of the trailer before the impact.Shortly before the collision the defendant had consumed four twelve-ounce bottles of beer at a local restaurant.The defendant's automobile struck the rear of the trailer so that when the vehicles came to rest the defendant's automobile was virtually entirely within the trailer.Subsequent to the accident the defendant pleaded guilty in the Circuit Court to a violation of § 14-240(a) of the General Statutes, 'following too closely,' with regard to his 'activities' on the night of the accident.The defendant thought he was at fault in the accident, and pleaded guilty to a violation of § 14-240(a) with the 'advice and counsel of Attorney Testa.'He pleaded guilty for the following reasons: (1)'Well, I had always been told that whoever hits in a rear end accident is to blame, so I just figured I was.'(2)The defendant did not check the law.(3)The defendant was 'unable to afford an attorney.'After the accident the defendant had an odor of liquor on his breath, his walk was unsteady but not pronounced and he was disoriented.At the Circuit Courtthe defendant stated to the plaintiff: 'I shouldn't have been drinking.It's my fault.'

The defendant's claims of proof included the following: On July 3, 1969, there were no signs on the Dexter Coffin bridge which authorized vehicular parking.There were no shoulders on the bridge, but there were parking shoulders for emergency stops and for disabled vehicles immediately to the south and immediately to the north of it.The plaintiff, Alfred Gosselin, Sr., parked his vehicle in order to transfer his son, the plaintiffMichael Gosselin, from the front seat of the truck into the camper which was lodged in the bed of the truck.Prior to parking on the bridge the plaintiff did not look into the rearview mirror of his truck to see the traffic conditions behind him.Prior to the accident Rita Gosselin did not look around to see where she was on the highway or to see what traffic was like when she got out of the camper.When the defendant entered his automobile to leave the restaurant where he had had his supper, he felt fine and did not feel in any way affected by the four bottles of beer he had had.Just before the defendant drove on to the Dexter Coffin bridge it began raining hard, visibility was reduced to approximately three feet, and the defendant reduced his speed from sixty to '50 to 55 miles per hour.'Prior to July 3, 1969, the defendant had driven over the Dexter Coffin bridge many times but had never seen a vehicle parked or stopped on it and did not expect to see one that night.As he was proceeding on the bridge the defendant suddenly saw red lights and immediately applied his brakes.His vehicle began to slide and skid on the wet surface of the road in a straight line into the rear of the Gosselin trailer.The defendant did not turn his vehicle to the right because on his right was the side of the bridge, and did not turn his vehicle to the left because there were cars traveling in the lane to his left.At the time of the accident the defendant was not under the influence of alcohol.When the defendant pleaded guilty to the charge of 'following too closely'he did not have a lawyer with him and could not afford to hire one to defend him.The defendant did see an attorney prior to pleading guilty, but was not advised on what to do.At the time he pleaded there was a question in his mind as to whether the accident was his fault.The defendant did not say to the plaintiffs that the accident was his fault or that he should not have been drinking.

It should be noted, before considering the plaintiffs' attacks on the charge, that they made no requests to charge the jury on the issues they now contest.The plaintiffs first maintain that the court erred in the portion of its charge relating to the issue of the defendant's consumption of alcohol, ² claiming that it removed any consideration of alcohol from the jury.The plaintiffs contend that evidence of the defendant's consumption of alcohol was relevant to the allegation in their complaint that the defendant was not keeping a 'reasonable and proper lookout' and that the charge 'completely and effectively removed and consideration of such evidence.'

A jury charge must be read as a whole and error cannot be predicated upon detached sentences or portions;Danehy v. Metz, 140 Conn. 376, 379, 100 A.2d 843; nor can error be claimed because it is not as accurate upon legal principles as the opinions of a court of last resort, if it fairly presents the case to the jury in such a way as to avoid injustice.Lucier v. Meriden-Wallingford Sand & Stone Co., 153 Conn. 422, 425, 216 A.2d 818.The charge instructed the jury not to consider any allegation of driving under the influence as a 'specification of negligence.'There is no question here that there was no specification of negligence based upon driving under the influence of liquor in the complaint, so that the charge in question is perfectly proper in that respect.SeeMegin v. Carney, 148 Conn. 130, 133, 167 A.2d 855;Smith v. Housing Authority, 144 Conn. 13, 16, 127 A.2d 45;Johnson v. Whipple, 117 Conn. 599, 602, 169 A. 619;Maltbie, Conn.App.Proc, § 72.Nor was there a request to charge on the issue.As we said in Lewandoski v. Finkel, 129 Conn. 526, 531, 29 A.2d 762, 764: 'One purpose of requiring specific allegations of negligence in a complaint is to enable the trial court, if the case is tried to the jury, to determine what issues it should submit to them, and unless by the allegations, or at least by a request for a charge, it is reasonably informed of a claim of negligence upon which a plaintiff relies it is justified in not submitting that claim to the jury.'(Emphasis added.)

The plaintiffs nonetheless contend that the second part of this portion of the charge removed any consideration of alcohol from the jury by precluding them from drawing reasonable inferences from the evidence presented.Quite clearly, the portion of the charge in question merely instructed the jury not to draw inferences from the fact of a 'question having been asked,' which may have resulted in an objection or the sending of the jury 'out of the room.'The court specifically instructed the jury on the...