Josephson v. Meyers

• Decision Date: 22 April 1980
• Citation: 429 A.2d 877,180 Conn. 302
• Court: Connecticut Supreme Court
• Parties: Donna JOSEPHSON v. Margaret MEYERS, Administratrix (ESTATE OF Michael MEYERS) et al.

Page 877

429 A.2d 877

180 Conn. 302

Donna JOSEPHSON v. Margaret MEYERS, Administratrix (ESTATE OF Michael MEYERS) et al.

Supreme Court of Connecticut.

Argued Dec. 13, 1979.

Decided April 22, 1980.

William F. Gallagher, New Haven, with whom were Roger B. Calistro, New Haven, and, on the brief, Robert E. Reilly, Madison, for appellant-appellee (plaintiff).

John A. Keyes, New Haven, with whom, on the brief was Thomas F. Keyes, Jr., New Haven, for appellee-appellant (named defendant).

Henry W. O'Brien, Hamden, for appellees (defendants Anthony M. Raio et al.).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and PARSKEY, JJ.

COTTER, Chief Justice.

Donna Josephson, who was fifteen years old at the time of the accident, brought this action by her parent and next friend to recover damages for injuries suffered when she was struck by a car operated by the defendant's decedent Michael Meyers ¹ as she was crossing Saltonstall Parkway in East Haven after alighting from a school bus owned by the defendant Chieppo Bus Company (Chieppo) and operated by the defendant Anthony Raio. A second count in the plaintiff's complaint was withdrawn and the jury returned a verdict in favor of the plaintiff on the first count against Meyers and in favor of Chieppo and Raio on the third count. Both the plaintiff and Meyers then filed their separate motions to set aside the verdict and motions for a new trial. Following the denial of their motions, both the plaintiff and Meyers appealed to this court from the judgment rendered on the verdict.

The jury could have found the following material facts: After attending the afternoon session of the East Haven High School, at approximately 5:20 p. m. on the evening of January 10, 1973, the plaintiff was transported to her home on a school bus owned by Chieppo and operated by Raio. Taking the same route he had followed since the beginning of the school year, Raio arrived at the designated bus stop on the northerly side of the westbound lane of Saltonstall Parkway in order to discharge the plaintiff and several other students. At the time of the accident, Saltonstall Parkway was a four lane public highway with two lanes running in an easterly direction and two lanes running in a westerly direction. The easterly and westerly lanes were separated by an island. Upon stopping the bus and flashing the warning lights, Raio opened the doors of the bus and the plaintiff and several other students alighted onto the curb alongside the right-hand, northerly side of the road. In order for several of the students, including the plaintiff, who had alighted from the bus at that particular stop to reach their homes, it was necessary for them to cross all four lanes of the parkway. Within seconds after she stepped out from in front of the bus, the plaintiff was struck by the vehicle operated by Michael Meyers which was passing the bus while the warning lights were flashing.

The basis of the plaintiff's motion to set aside the verdict in favor of Chieppo and Raio was the claimed impropriety of the trial court's charge which removed from the jury's consideration the specification of negligence based on the defendants' alleged failure to provide the plaintiff with a reasonably safe place to alight from the school bus. ² Subject to the standard of care applicable to a common carrier, ³ it was the duty of Chieppo "to use the utmost care consistent with the nature of its business to guard its passengers against all dangers which might reasonably and naturally be expected to occur, in view of all the circumstances." Robinson v. Connecticut Co., 122 Conn. 300, 301, 189 A. 453; Yu v. New York, N. H. & H. R. Co., 145 Conn. 451, 455, 144 A.2d 56; Andrea v. New York, N. H. & H. R. Co., 144 Conn. 340, 344, 131 A.2d 642; Dokus v. Palmer, 130 Conn. 247, 250, 33 A.2d 315. The duty to its passengers may, under certain circumstances, include giving a warning of dangerous conditions or of impending peril; Bowes v. New England Transportation Co., 126 Conn. 200, 205, 10 A.2d 589; or it may require providing assistance to its passengers while alighting from the carrier. Yu v. New York, N. H. & H. R. Co., supra; Andrea v. New York, N. H. & H. R. Co., supra. But it is unquestionably the duty of the carrier to provide its passengers with a reasonably safe place to alight. Roden v. Connecticut Co., 113 Conn. 408, 410, 115 A. 721. Thus, in Roden for example, the defendant bus company was held liable for the injuries suffered by a seven year old boy who was struck by a truck after being discharged onto the middle of a roadway by the operator of the bus. In view of the duty upon the trial court to submit to the jury only those issues which are relevant to the pleadings and the facts in evidence; Panaroni v. Johnson, 158 Conn. 92, 110, 111, 256 A.2d 246; we must determine whether the evidence adduced at trial required the trial court to deliver the instructions which it presented to the jury. See Novak v. Anderson, 178 Conn. 506, 423 A.2d 147; Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436; Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236; Katsetos v. Nolan, 170 Conn. 637, 654, 368 A.2d 172.

The specification of negligence which the court removed from the jury's consideration alleged that Raio was negligent "(i)n that he discharged the Plaintiff on the northerly side of said Saltonstall Parkway when in the exercise of reasonable care he should have discharged said Plaintiff on the southerly side of said Saltonstall Parkway" so as to obviate the need for her to cross the parkway in order to reach her home. To support her contention of negligence, the plaintiff introduced evidence that on several occasions prior to the night of the accident, the bus driver would have to beep the horn in order to get cars to stop and the students themselves, in order to cross the road, would have to direct traffic and signal automobiles to stop. In addition, the plaintiff showed that the route followed by the bus during the prior school year discharged the plaintiff on the southerly side of the parkway and that the route change for the 1972-1973 school year requiring that the plaintiff be discharged on the northerly side of the parkway was necessitated by construction work which had been completed before the accident had occurred.

After reviewing the evidence adduced at trial, we conclude that the charge complained of was proper. The mere fact that the plaintiff was required to cross the street after alighting from the school bus in order to arrive at her home does not render the bus stop where the plaintiff alighted unreasonably dangerous. There was evidence which showed that the plaintiff as well as other students had gotten off of the bus at the stop in question several times in the past and crossed the parkway without incident. In addition, there was evidence, which the jury presumably accepted, to the effect that Raio followed his scheduled route and complied with all of the statutory requirements for the safe discharge of his passengers. ⁴ Although it is true that compliance with a statute does not necessarily preclude a finding of negligence, where the facts are similar to those contemplated by the statute and no special or unusual circumstances or dangers are present, a defendant satisfies his duty of care by complying with the statute. See Trombly v. New York, N. H. & H. R. Co., 137 Conn. 465, 467-68, 78 A.2d 689; Kinderavich v. Palmer, 127 Conn. 85, 100, 15 A.2d 83; Prosser, Torts, § 36, pp. 203-204, (4th Ed. 1971); Restatement (Second), Torts, § 288c. The statutory scheme regarding the transportation of school children contemplates that students alighting from a school bus may have to cross the road in order to get home ⁵ and the plaintiff offered no evidence to establish that at the time of the accident there were any unusual circumstances which would require the defendant Raio to deviate from his assigned route. Accordingly, we conclude that there was no error in the trial court's charge to the jury regarding the negligence of the defendants Chieppo and Raio.

Both the plaintiff and the defendant Meyers claim error in the denial of their separate motions for a new trial which were both predicated on alleged juror misconduct and in the exclusion, at the hearing on these motions, of testimony from two of the jurors regarding that misconduct.

After two days of deliberations, the jury reached its unanimous verdict which the court accepted in the usual fashion. Under the procedure for receiving, accepting and recording a verdict which has been followed in our courts, "the final assent of the jurors, given after the verdict has been read aloud by the clerk, accepted and ordered recorded by the court, and read aloud a second time by the clerk, makes the verdict.... Ample opportunity is thus afforded, and designedly so, for the court, counsel, and the jurors to comprehend the verdict and to cure any misunderstanding before the final assent." Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 106, 108.

In this case the verdict was read by the clerk to the jury twice and then inquiry was made whether they all assented to the verdict as read. All of the jurors assented. The verdict was accepted and recorded and the jurors were subsequently discharged. Several days thereafter, the plaintiff's attorney received a letter from one of the jurors which indicated that the author and another juror did not agree to the verdict as rendered even though they had assented to it in open court. On the basis of this letter, the parties moved for a new trial alleging that the assent to the verdict by the jurors mentioned in the letter was acquired by the misconduct of the foreman in failing to deliver a note to the trial judge which those two jurors requested him to do. At the hearing on the parties' motions, the plaintiff's counsel stated that he intended to elicit testimony from those two jurors regarding the contents of the...