Leblanc v. Grillo

• Decision Date: 01 September 1942
• Citation: 129 Conn. 378,28 A.2d 127
• Court: Connecticut Supreme Court
• Parties: LEBLANC v. GRILLO et al.

28 A.2d 127

129 Conn. 378

LEBLANC

v. GRILLO et al.

Supreme Court of Errors of Connecticut.

Sept. 1, 1942.

[Copyrighted material omitted.]

Appeal from Superior Court, New London County; Dickenson, Judge.

Action by Antoine D. LeBlanc, administrator (estate of Alyre LeBlanc), against Angelo Grillo and others to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of the defendants. Verdict and judgment for plaintiff, and appeal by defendants.

No error.

Before MALTBIE, C. J., and AVERY, JENNINGS, ELLS, and CORNELL, JJ.¹

Charles V. James and Joseph S. Longo, both of Norwich (Arthur M. Brown, of Norwich, on the brief), for appellants.

Harry Schwartz, of Norwich, and George C. Morgan, of New London, for appellee.

CORNELL, Judge.

The principal issue on this appeal is whether the court erred in refusing to set aside the verdict. The action arose out of a collision between two automobiles on the Norwich-New London highway about 1:15 a.m., on October 27, 1940, at or near the area where the East Great Plain Road intersects it in the Trading Cove section of Montville. Immediately before the impact the two cars were approaching each other from opposite directions. That owned and operated by plaintiff's intestate was going north, and the other, owned by defendant Samuel Grillo and operated by his brother Angelo Grillo, was moving south. The trial court's decision implies the conviction that there was evidence from which the jury might have reasonably concluded that the driver of the Grillo car was negligent, in some manner alleged in the complaint. This, in turn, as the issue is presented, depends upon whether there was evidence before the jury from which they could have found that immediately before or at the time the impact occurred the Grillo car was being driven on the left of the center line of the highway and that in so doing its operator failed to "give half of the traveled portion" of the highway to the LeBlanc car, as required by General Statutes, Cum.Supp. 1939, § 544e(a). There was no evidence that it was impracticable for the driver of the Grillo car to have complied with the statute in this respect.

The jury could not have resolved this factual issue for the plaintiff, as they obviously did, except by rejecting the testimony of witnesses who testified for the defendants concerning the manner in which the collision happened and basing their determination wholly on inferences drawn by them from physical facts which they could properly find that the evidence established. This they were at liberty to do. White v. Herbst, 128 Conn. 659, 661, 25 A.2d 68. Particularly is this so if they deemed the circumstantial evidence a more reliable guide to a solution than the other testimony before them. Richard v. New York, N. H. & H. R. Co., 104 Conn. 229, 232, 132 A. 451; Leon v. Kitchen Bros. Hotel Co., 134 Neb. 137, 141, 277 N.W. 823, 115 A.L.R. 1078.

The physical facts which the jury might have found proved were: The Norwich-New London highway lies in a generally north-south direction. The traveled portion of the highway was of concrete construction and consisted of two lanes, each twelve feet wide, with an expansion joint between them which coincided with the middle line of the traveled part of the highway. The grade of the road in the section where the collision occurred was 10 per cent. ascending toward the south. In that area there was a curve toward the east, having a 10 per cent radius. The cars met at a point within the traveled way at or near the arc of this curve. When they came to rest after the collision, the right rear end of the LeBlanc car was at the east edge of a concrete gutter which borders the east line of the traveled part of the highway. The car projected out into the east panel in a slightly northerly direction. The right rear wheel of the Grillo car was three feet ten inches from the west edge of the west panel. The car pointed in a generally southeasterly direction with its right front wheel on, and its left front wheel about two feet over, the center line, and that distance within the east panel. The front ends of the two vehicles practically faced each other and stood about three feet eight inches apart. Between their front ends on the east panel there was a deposit of debris. This consisted of glass, water, mud, oil and some grill work. There was no evidence to indicate from which of the two cars this had fallen or whether it was contributed by both. The Grillo car was a Buick seven-passenger sedan and very heavy; LeBlanc's was a Chevrolet coach and much lighter than the other. There were three adult occupants in the Grillo car, inclusive of the driver, and four, in all, in LeBlanc's. The left fronts and left forward parts of both cars were completely demolished, and the left front wheels of both entirely detached. There was no damage to the right front or side of either car attributable to contact between the two, at either of such points. No brake, tire or other marks appeared on the surface of the highway at any point at or near the area where the vehicles stood after the collision.

Counsel for each of the parties treat the controlling question to be whether the Grillo car or some substantial part of it was on the east panel of the highway at the time that the collision occurred. The defendants urge that the jury could not have concluded from the physical facts detailed that it occupied such a position without resorting to speculation or conjecture, for two reasons, viz., (1) such circumstantial evidence affords no reasonable basis for such an inference, but (2) if it can be said to do so, it admits of other hypotheses opposed to it, to which it lends equal support. These contentions are so closely related that they may be considered together. A considerable body of authority subscribes to the statement that "A theory cannot be said to be established by circumstantial evidence, either in a civil or a criminal case, unless the facts and circumstances shown are not only consistent with such theory, but absolutely inconsistent with any other rational theory." 10 R.C.L. 1007, § 196. To same effect, 23 C.J. 49 and cases cited in note 48; 32 C.J.S., Evidence, § 1039, p. 1102 and cases cited in note 27. This rule has never been adopted in Connecticut We have consistently held that in a civil case proof of a material fact by inference from circumstantial evidence, alone, need not be so conclusive as to exclude every other hypothesis. Bradbury v. South Norwalk, 80 Conn. 298, 301, 68 A. 321. This is in accord with the rule which prevails in a number of states. In a civil action, "circumstantial evidence * * * in order to be sufficient to sustain the verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than that arrived at by the jury." Chalmers v. Hawkins, 78 Cal.App. 733, 739, 248 P. 727, 730; Katenkamp v. Union Realty Co., 36 Cal.App. 2d 602, 617, 98 P.2d 239, and cases cited; Paine v. Gamble Stores, Inc., 202 Minn. 462, 469, 279 N.W. 257, 116 A.L.R. 407; Mitton v. Cargill Elevator Co., 124 Minn. 65, 71, 144 N.W. 434, and see Exchange State Bank v. Occident Elevator Co., 95 Mont. 78, 87, 24 P.2d 126, 90 A.L.R. 740. "It is sufficient if the evidence produces in the mind of the trier a reasonable belief of the probability of the existence of the material facts." Esserman v. Madden, 123 Conn. 386, 388, 195 A. 739, 740; Hoyt v. Danbury, 69 Conn. 341, 348, 37 A. 1051.

The decisive consideration is not whether the finding implicit in the jury's verdict is...