Grzys v. Connecticut Co.
| Decision Date | 01 February 1938 |
| Citation | 198 A. 259,123 Conn. 605 |
| Court | Connecticut Supreme Court |
| Parties | GRIZYS v. CONNECTICUT CO. et al. KLIMEK v. SAME. TYBURCKY v. SAME. |
Appeal from Superior Court, Fairfield County; Earnest C. Simpson Judge.
Actions by John Grzys, administrator of the estate of John Grzys Jr., by Joseph Klimek, administrator of the estate of Stanley Klimek, and by George Tyburcky, administrator of the estate of Anna Nowak, against the Connecticut Company and others to recover for the death of plaintiffs' intestates, alleged to have been caused by the negligence of defendants. Verdicts and judgments for plaintiffs, and defendants appeal.
Motions to erase appeals denied.
No error.
William H. Comley and Sidney A. Johnson, both of Bridgeport, for appellants.
Samuel E. Friedman, Irwin E. Friedman, and Edward A. Dworken, all of Bridgeport, for appellees.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.
In these cases the jury returned its verdicts of June 3, 1937. On June 4, 1937, the defendants moved to set the verdicts aside. On June 11, 1937, the defendants filed appeals from the judgments rendered in them. On June 17, 1937, the trial court denied the motions to set the verdicts aside. The plaintiffs now move to erase the appeals from the judgments from the docket, because at the time they were filed final judgments had not been entered in the cases.
In a case tried to the court the time to appeal runs from the announcement by the trial court of its decision, either orally or by filing a memorandum of decision and the time within which to file the appeal is not postponed to the formal entry of judgment, which might occur a considerable time after the decision. Sisk v. Meagher, 82 Conn. 376, 73 A. 785. If, however, a motion to open a judgment or the like is made an appeal may be filed within the proper time after the decision upon the motion. Peerless Soda Fountain Service Co. v. Savin, 117 Conn. 1, 2, note, 166 A. 386; Glazer v. Rosoff, 120 Conn. 120, 122, 179 A. 407.
The acceptance of a verdict by the trial court in a jury trial is somewhat analogous to the announcement of the decision in a court case, and there would be the same disadvantage in the former as in the latter if the time to appeal were to run from formal entry of judgment. Hence the acceptance of the verdict is the ‘ rendition of the judgment’ within the meaning of section 335 of the Practice Book 1934, p. 98, and ordinarily sets running the time in which to file an appeal. If a motion to set aside the verdict is filed, this, like a motion to open a judgment in a court case, may postpone the time to appeal. If before or pending the filing of such a motion an appeal is filed and not withdrawn it will be regarded as properly filed and will become effective if the motion is denied. Hull v. Thoms, 82 Conn. 386, 391, 73 A. 793.
The motions to erase are denied.
On the Merits.
These three cases arising out of the same accident were tried together to the jury upon identical issues, except as to damages. In their appeal in each case the defendants claim that the court erred in charging the jury, and in denying their motion to set aside the verdict. The plaintiffs' decedents, while riding in a Packard sedan in a westerly direction on the Boston Post road in Westport, were killed by a collision with a maple tree near the edge of the north shoulder of the road, about 500 feet west of its intersection with Turkey Hill road. From a point 25 feet east of the tree, a 2-strand steel cable fence with wooden posts extends easterly along the north edge of the 7 1/2-foot. wide, hard-surfaced shoulder for 335 feet. The 36-foot wide concrete highway is straight at this place on a grade descending to the west from the intersection. Between 10:30 and 11 o'clock on the night of April 26, 1936, John Drapala drove his Packard sedan westerly along the Post road. At a point 150 feet east of the tree it ran off onto the north shoulder and, striking a fence post 90 feet east of the tree, continued along, scraping against the fence until the right side of the car crashed into the tree. Thereby its right side was demolished, the passengers were thrown out and injured, and the car came to rest 36 feet southwest of the tree, headed in a northeasterly direction. Meantime the defendant company's bus, driven by the defendant Price as its agent, was proceeding easterly along the Post road. As it overtook and proceeded to the left of another eastbound car, it passed the Packard and was not brought to a stop until it reached a point just west of Turkey Hill road. After discharging a passenger there, Price drove the bus on to Bridgeport. These facts are not in dispute. The plaintiffs claimed, however, that through the defendants' negligence the left front corner of the bus came in contact with the left rear fender of the Packard at a point 2 feet north of the center line of the road and 46 feet southeast of where it ran off onto the north shoulder in consequence thereof. The defendants claimed that the bus did not strike the Packard at all, but that Drapala, its driver, by reason of excessive speed lost control of the car causing it to go off onto the shoulder taking the course it did, and that as it crashed against the tree, the bus was passing by on the other side of the road.
The first claimed error in the charge is the reference made by the court to the defendant Price's failure to stop and render aid. Among other grounds, the complaint alleged that the defendants were negligent, causing the collision, ‘ in that he [Price] knowingly caused injury to other persons and property, yet did not stop to ascertain the extent of the injuries and render such assistance as might have been needed but did in fact evade all responsibility for said accident.’ Referring to this allegation the court charged that even if this allegation were true it could not have been the proximate cause of the collision between the two vehicles, since Price's conduct, referred to, was subsequent to the impact. It further charged in substance that if there was a collision, and Price knew of it, knew, or should have known it resulted in injury to others, and yet failed to stop to ascertain their injuries and render necessary assistance, there would be a violation of the statute. Gen.St.1930, § 1584. It then continued, that while this would not be a proximate cause of these injuries, the jury might consider these facts in passing upon the question of whether Price ‘ had guilty knowledge of a collision having occurred, and of his being guilty of some negligence on his part as alleged, and give these facts such weight as you reasonably think proper in view of all the circumstances and facts appearing in the case.’
The defendants complain because the court did not tell the jury more clearly to ignore this allegation of negligence. Shortly before its use of the words quoted, however, the court has defined proximate cause, and while it further stated that violation of a statute would constitute negligence, it added that either claimed acts of negligence or violation of the statute to be actionable must be the proximate cause of the injury. This essential to liability was reiterated near the end of the charge. In the light of these statements the language complained of amounted to an explicit instruction that Price's alleged failure to stop and assist could not constitute actionable negligence. The defendants further contend that his failure to return to the wrecked car could not have been considered as evidence of negligence. As we said with reference to a similar situation in Kotler v. Lalley, 112 Conn. 86, 88, 151 A. 433, ‘ A jury is entitled to entertain certain presumptions and draw inferences of fact from such conduct in the nature of admissions against the defendant.’ Applying this principle, the court by its language correctly instructed the jury as to the limits within which and the purposes for which they could properly consider this evidence. The court did not err in this portion of its charge.
The defendants' second claim is that the court erred in charging: ‘ Now if you cannot find that the plaintiff has proven that there was a collision between these two vehicles I do not see how, upon the theory on which this case was tried, that you could find a verdict for these plaintiffs.’ The case was tried solely on the theory that the accident resulted from an actual contact between the bus and the Packard car. The defendants contend that therefore, since the complaint contained...
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