Lopez v. Price

• Decision Date: 17 July 1958
• Citation: 145 A.2d 127,145 Conn. 560
• Court: Connecticut Supreme Court
• Parties: Cheryl LOPEZ et al. v. Abraham PRICE et al. Supreme Court of Errors of Connecticut

Page 127

145 A.2d 127

145 Conn. 560

Cheryl LOPEZ et al. v. Abraham PRICE et al.

Supreme Court of Errors of Connecticut.

July 17, 1958.

Julius B. Schatz and Edward Seltzer, Hartford, for appellants (defendants McDonald et al.).

Paul B. Groobert, Manchester, with whom were Ronald Jacobs, Manchester, and, on the brief, George C. Lessner, Manchester, for appellants-appellees (plaintiffs).

William P. Aspell, Hartford, with whom was George Muir, Hartford, for appellee (named defendant).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

DALY, Chief Justice.

This action was brought to recover damages for personal injuries sustained by Cheryl Lopez and Pamela Lopez, minors, and Anna Lopez, their mother and the wife of William Lopez, who is acting as next friend of the minor children and is also joined as a plaintiff in his own right. The suit was instituted against Dionigi Arrigoni, the owner of a truck, Arthur C. McDonald, his agent and employee, and the named defendant, in whose car the children and their mother were riding. Dionigi Arrigoni died before the case was tried, and Anne G. Arrigoni and Charles J. Arrigoni, executors under his will, were made parties to the action. The jury returned a verdict for the named defendant, and for the plaintiffs as against the other defendants, hereinafter referred to as the defendants. Appeals were taken by the defendants and by the plaintiffs. The defendants assign as error the denial of their motions to set aside the verdict and for a directed verdict. Their contention that the court erred in denying their motion to set aside the verdict is based upon their claims (1) that the verdict is not supported by the evidence on the issue of liability and (2) that it is excessive.

The plaintiffs offered evidence to prove the following facts: On June 20, 1953, a bright warm day at about 11:50 a.m. Pamela Lopez, age four, Cheryl Lopez, age six, and their mother, Anna Lopez, were passengers in an automobile owned and operated by Abraham Price. They were going to a picnic at a place south of Middletown. While proceeding in a southerly direction on Main Street Extension in Middletown, Price decided to stop at a 'Dairy Queen' on the east side of the road to obtain ice cream for the children. Main Street Extension was a main artery of traffic. Its complete and usable width for traffic was fifty-six feet. Although there was a slight curve going northerly from the Dairy Queen, the road was substantially straight to the south of it. Price's car was equipped with directional signals, and as he approached the entrance to the Dairy Queen he put on his left front flicker to indicate his intended left turn. When he came abreast of the Dairy Queen, he stopped his car to permit who oncoming northbound cars to pass by. After those cars had passed, he looked to the south again and saw no other vehicles approaching from that direction. He then turned his car to the left at substantially a right angle and, proceeding at a speed of not more than five or ten miles per hour, had almost driven the front wheels of his car into the Dairy Queen driveway when, without prior warning, the right side of his car was smashed into by a ten-wheel Mack dump truck operated in a northerly direction, at a speed of more than thirty-five miles per hour, by McDonald in the course of his employment by the owner of the truck, Dionigi Arrigoni. The noise of the impact was so great that it was heard 1500 feet away. Price's car was struck on the rear quarter of its right side and after the impact went into a spin and came to rest facing in a northwesterly direction. The damage to the car was approximately $1100. The force of the impact was so great that Mrs. Lopez, a front seat passenger, was thrown out of the car onto a curbstone off the highway, where she lay injured and unconscious. The truck continued northerly after the impact and stopped 112 feet north of the point of the collision. McDonald, called as a witness by the plaintiffs, testified that he was very familiar with the highway, that when he first saw Price's car it was about 500 feet away, and that before the impact he did not turn the truck to the right or left, but continued straight ahead.

The defendants claim that McDonald was not negligent, that no negligence on his part was a proximate cause of the injuries and damage sustained by the plaintiffs, that if he was negligent the proximate cause of the collision was the negligence of Price, that Price's negligence superseded McDonald's alleged negligence, and that any act or failure to act on the part of McDonald was merely a condition and not the cause of the collision.

A verdict of a jury prevails unless it is unsupported by the evidence or unless it is so palpably against the evidence as to indicate prejudice, partiality, corruption, confusion or lack of understanding of the issues by the jury. Harris v. Clinton, 142 Conn. 204, 209, 112 A.2d 885. The jury are the judges of the credibility of witnesses. They decide what weight justly belongs to the evidence. If the verdict to which they have agreed is a conclusion to which twelve honest men acting fairly and intelligently might come, then that verdict is final and cannot be disturbed. The propriety of the court's refusal to set aside the verdict is to be tested by the evidence most favorable to the plaintiffs. The concurrence of the judgments of the judge and the jury who saw the witnesses and heard the testimony is a powerful argument for sustaining the action of the trial court. We are to decide only whether there was evidence which the jury could have reasonably credited and from which they could have fairly reached the conclusion they did. In the last analysis, the defendants ask that this court retry the case on the evidence. We do not do this. Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760. The verdict for the plaintiffs against the defendants was amply supported by the evidence on the issue of liability. The jury could have fairly reached the conclusion that McDonald was negligent and that his negligence was the proximate cause of the collision and the resulting injuries and damage. The court did not err in denying the defendants' motion for a directed verdict and in denying their motion to set aside the verdict on the issue of liability.

Cheryl, who was six years old, was seated behind the driver, away from the direct force of the impact. The plaintiffs offered evidence to prove the additional following facts: She sustained a contusion of her nose with some abrasions, a contusion of her upper lip, and a loosening of her right upper incisor. She had dizziness and headaches. Although x-rays of her nose were negative for fracture, she continued to complain of difficulty in breathing through her nose. She sustained and was suffering from a deviated septum as a result of the accident. Her back injury was diagnosed as a dorsal strain. At the time of trial she complained of back pain in the middorsal region, sometimes extending down to about the dorsolumbar junction. She will have a small permanent partial disability of her back for the remainder of her life. Her life expectancy, at the time of trial, was 63.77 years.

Mrs. Anna Lopez, who was thrown from the car and rendered unconscious, was taken by ambulance to the Middlesex Memorial Hospital in Middletown, as were the two children. She was transferred to the Manchester Memorial Hospital. She suffered a cerebral concussion, shock, contusion of her anterior chest and abdominal wall, aggravation of a lumbosacral strain, extreme post-injury nervousness, and multiple contusions of the body. Her intestines were partially inactivated or paralyzed, causing her stomach to distend. In addition, she received a trauma to her abdomen and probably had some bleeding in or posterior to, the abdomen. Her abdominal injury was diagnosed as an ileus. She was very tense, anxious, nervous and upset. She remained in the...