Kelly v. Bliss

• Decision Date: 08 December 1970
• Citation: 160 Conn. 128,273 A.2d 873
• Parties: Rosemary M. KELLY et al. v. Julia L. BLISS.
• Court: Connecticut Supreme Court

Page 873

273 A.2d 873

160 Conn. 128

Rosemary M. KELLY et al. v. Julia L. BLISS.

Supreme Court of Connecticut.

Dec. 8, 1970.

D. Michael Hurley, Hartford, with whom, on the brief, were Leon RisCassi and William R. Davis, Hartford, for appellants (plaintiffs).

Andrew J. O'Keefe, Hartford, with whom was A. Lucille Matarese, Hartford, for appellee (defendant).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ., concurring.

SHAPIRO, Associate Justice.

This is a negligence action, brought in three counts, in which Rosemary M. Kelly, the plaintiff operator of an automobile, and Kathleen Kelly, her passenger, sustained injuries alleged as the result of a collision with the defendant's car and wherein the husband of the plaintiff operator sought damages for medical expenses which he incurred in behalf of his wife. The defendant, Julia L. Bliss, denied all the allegations of negligence and pleaded contributory negligence as against the plaintiff operator. In the course of the trial, the court granted the defendant's motion to amend her answer to plead contributory negligence against the passenger, Kathleen Kelly. The jury returned a general verdict in favor of the defendant. The plaintiffs have appealed from the judgment rendered on the verdict, and have assigned error in the denial of their motion to set aside the verdict, in the finding, in the charge to the jury, in the granting of the defendant's motion to amend her answer by adding a special defense, in the denial of their motion to strike that special defense in the striking out of a portion of that special defense, and in overruling the plaintiff passenger's demurrer to that special defense.

We first consider the plaintiffs' claim that the trial court erred in denying their motion to set aside the verdict. A general verdict in the defendant's favor imports that all issues submitted to the jury were found in her favor. Bradley v. Niemann, 137 Conn. 81, 83, 74 A.2d 876. If the jury could reasonably have found for the defendant on the issue of her negligence, this would suffice to support the verdict. Ibid.

In reviewing the action of the trial court in denying the plaintiffs' motion to set aside the verdict, we consider the evidence in the light most favorable to the sustaining of the verdict. Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 499, 208 A.2d 748; Kazukynas v. N. C. Casciano & Sons, Inc., 149 Conn. 1, 2, 174 A.2d 796; Maltbie, Conn.App.Proc. § 189. The court's action is tested by the evidence contained in the appendices to the briefs. Practice Book §§ 716, 718, 720-21; Smith v. Housing Authority, 144 Conn. 13, 14, 127 A.2d 45; Maltbie, Conn.App.Proc. § 185, p. 227.

The jury could reasonably have found that Kinsley Street, a four-lane highway in Hartford, is approximately forty-four feet wide, providing two lanes for eastbound and two for westbound traffic. On June 13, 1964, at about 12:05 p.m., it was raining and the pavement was very wet. Mrs. Kelly exited from a parking garage on the southerly side of Kinsley Street in order to make a left turn and entered the defendant's lane of travel when the Bliss car was about fifteen feet from her vehicle. At this time, the defendant, who had been proceeding westerly on Kinsley Street, was driving at a speed of twenty to twenty-five miles per hour. She applied her brakes and skidded four feet into the left rear of the Kelly car.

The complaint charged the defendant operator with negligence in operating at an excessive speed, in failing (1) to have control, (2) to apply her brakes in time to avoid a collision, (3) to keep a proper lookout, (4) to sound her horn or give a warning, and (5) to turn left or right to avoid the collision, and in following too closely in violation of General Statutes § 14-240. The jury could reasonably have found that the defendant operator was not negligent in any way alleged in the complaint. The refusal of the trial court, which saw and heard the parties and their witnesses, to disturb the verdict is entitled to weighty consideration in this court. Kazukynas v. N. C. Casciano & Sons, Inc., supra, 149 Conn. 4, 174 A.2d 796; Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760. The court did not err in denying the plaintiffs' motion to set aside the verdict.

The plaintiffs assign error in the refusal of the court to add certain facts to the defendant's claims of proof. There was no error in the ruling of the court. The usual rule is applicable that a litigant in a jury case may not force into the claims of proof of his adversary factual matters which are objectionable to the latter and upon which he does not rely. Franks v. Lockwood, 146 Conn. 273, 276, 150 A.2d 215; Turner v. Scanlon, 146 Conn. 149, 151, 148 A.2d 334; Salvatore v. Hayden, 144 Conn. 437, 439, 133 A.2d 622; Maltbie, Conn.App.Proc. § 160.

Error is claimed in the court's failure to charge the jury in accordance with two requests relating to the issue of the defendant's liability to the plaintiff passe...