Gulia v. Ortowski

• Decision Date: 16 January 1968
• Citation: 238 A.2d 396,156 Conn. 40
• Court: Connecticut Supreme Court
• Parties: Frank GULIA, Administrator (ESTATE of Stephen A. GULIA) et al. v. Frank ORTOWSKI.

Page 396

238 A.2d 396

156 Conn. 40

Frank GULIA, Administrator (ESTATE of Stephen A. GULIA) et al. v. Frank ORTOWSKI.

Supreme Court of Connecticut.

Jan. 16, 1968.

Irwin E. Friedman, Bridgeport, with whom, on the brief, were Arthur Levy, Jr., and Arthur D. Friedman, Bridgeport, for the appellants (plaintiffs).

John J. Hunt, Bridgeport, with whom was Samuel Engelman, Bridgeport, for the appellee (defendant).

Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.

COVELLO, Acting Justice.

Frank Gulia brought this action as administrator of the estate of Stephen A. Gulia to recover damages for the death of his decedent which resulted from a collision between an automobile operated by the defendant, Frank Ortowski, and a motorcycle operated by the decedent and individually to recover damages for injury to the motorcycle, which he owned. This case was tried together with an action in which Ortowski sought to recover damages from the estate of the decedent for personal injuries sustained by him in the same collision. The jury returned a defendant's verdict in each case.

Only the plaintiffs in the present case have appealed, and for the sake of simplicity Gulia and Ortowski will hereinafter be referred to as the plaintiff and the defendant, respectively.

In the trial of the case, the plaintiff offered evidence to prove, and claimed to have proved, the following facts: Nichols Avenue is a main thoroughfare which runs in a general north and south direction in the town of Stratford and is forty feet wide. Greenfield Avenue, which is twenty-eight feet wide, runs generally east and west and intersects Nichols Avenue. At the southwest corner of the intersection, there is a stop sign requiring traffic on Greenfield Avenue to come to a stop before entering Nichols Avenue. The westerly portion of Greenfield Avenue intersects Nichols Avenue at a point somewhat to the south of the point at which the easterly portion of Greenfield Avenue intersects Nichols Avenue. Thus, a motorist proceeding easterly on Greenfield Avenue who intends to cross Nichols Avenue and then continue on Greenfield Avenue must make a ninety-degree left turn onto Nichols Avenue and then a ninety-degree right turn to continue easterly on Greenfield Avenue. On August 18, 1963, at about 5:30 p.m., the defendant was driving his automobile in an easterly direction on Greenfield Avenue. At about that time the plaintiff's decedent was driving a motorcycle in a southerly direction on Nichols Avenue and was approaching the intersection of Greenfield Avenue. When the defendant reached the intersection of Nichols Avenue and Greenfield Avenue, he brought his car to a stop. He then proceeded to cross Nichols Avenue, intending to continue easterly on Greenfield Avenue, and while so doing collided with the motorcycle which the plaintiff's decedent was driving. At the time of the impact between the decedent's motorcycle and the defendant's car, the defendant's car was straddling the middle line of Greenfield Avenue and was facing in a generally northeasterly direction. The defendant's vehicle was seventeen feet long, and at the time of impact at least ten feet of it was still in the southbound lane of Nichols Avenue. The damage to the defendant's vehicle was on the front left side, and the damage to the motorcycle was to the front wheel. Prior to the moment of impact the decedent's motorcycle was making a low sound, indicating moderate speed, but after the impact the throttle opened resulting in a much louder noise. Following the collision, the defendant stated to the investigating officer that he observed the decedent's motorcycle before he started to cross Nichols Avenue.

The defendant offered evidence to prove, and claimed to have proved, the following facts: When the defendant arrived at the intersection of Greenfield Avenue and Nichols Avenue, he brought his car to a full stop and looked in both directions along Nichols Avenue. He then proceeded to cross Nichols Avenue and had passed the center line of Nichols Avenue before he saw the decedent's motorcycle. When he first saw the motorcycle it was approximately 200 feet away. He stopped his car to permit the motorcycle to pass. The front wheel of the motorcycle struck the left front portion of the defendant's car, which was over the center line of the northbound lane. The plaintiff's decedent died as a result of the collision about two hours after it occurred. A blood sample taken from the decedent's body at about 8 p.m., approximately one-half hour after his death, was found to have an alcohol concentration of .02 percent by weight.

The plaintiff assigns as errors (1) the charge to the jury, (2) the failure of the court to charge as requested, (3) the admission of the testimony of Dr. Saul M. Feldman, and (4) the denial of the plaintiff's motion to set aside the verdict.

The record does not contain any written request to charge. Consequently, we consider on appeal only the exceptions which were taken to the charge as given. Practice Book §§ 249, 251, 252; State v. Mallette, 153 Conn. 584, 587, 219 A.2d 447.

When the court concluded its charge on the specifications of contributory negligence in each of the two cases, it inquired of counsel whether it had failed to charge on any specification of negligence or contributory negligence. Thereupon the plaintiff's attorney sought a charge on the presumption of freedom from contributory negligence. Whereupon the court stated: 'I have talked about presumption.' Upon counsel's persistence, the court charged as follows: 'In any action to recover damages for negligence causing the death of a person, it shall presume that such person whose death was caused was at the commission of the alleged negligent act in the exercise of reasonable care. In other words, it is presumed that the decedent was in the exercise of reasonable care when he was operating that motorcycle. On the other hand, that presumption can be met by evidence produced here to overcome that presumption. And, at the same time, of course, we have that statute which says that, in reference to contributory negligence, the plaintiff is supposed to be in the exercise of due care subject to being overcome by evidence from the other side.'

At the conclusion of this charge, the plaintiff excepted on the grounds that (1) the administrator, in his action against the defendant, was entitled to a presumption...