Nash v. Hunt

• Decision Date: 04 June 1974
• Citation: 352 A.2d 773,166 Conn. 418
• Parties: Charles H. NASH, Jr. v. Vincent G. HUNT et al. Carl HUNT et al. v. George HOXIE.
• Court: Connecticut Supreme Court

Page 773

352 A.2d 773

166 Conn. 418

Charles H. NASH, Jr. v. Vincent G. HUNT et al.

Carl HUNT et al. v. George HOXIE.

Supreme Court of Connecticut.

June 4, 1974.

Walter M. Pickett, Jr., Waterbury, for appellant (defendant Hoxie) in each case.

John A. Mettling, Torrington, for appellees (plaintiffs) in second case.

Carmine R. Lavieri, Winsted, with whom, on the brief, were Frank H. Finch, Jr., and David M. Cusick, Winsted, for appellee (plaintiff) in first case.

Joseph P. Kenny, Hartford, for appellees (named defendant and others) in first case.

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

HOUSE, Chief Justice.

These actions arose out of an automobile collision at a highway intersection in the town of Winchester. The cases were tried together to a jury and, by stipulation, they were consolidated for appeal. Practice Book § 606. The collision occurred between a 1964 Pontiac sedan owned and operated by the defendant, George Hoxie, in which the plaintiff, Edward H. Nash, Jr., was a passenger, and a 1934 Plymouth sedan operated by the defendant Carl Hunt, Jr., and owned by the defendant Vincent G. Hunt. The plaintiff Nash brought suit against both the defendant Hoxie and the defendants Hunt, alleging in his complaint as amended that the collision and his injuries were caused by their negligence. As plaintiffs Carl Hunt and his father, Vincent Hunt, brought suit against the defendant Hoxie alleging that the plaintiff Carl's injuries and the expenses incurred by the plaintiff Vincent were caused by the defendant Hoxie's negligence. In the complaints, it was alleged, inter alia, that the defendant Hoxie was negligent in that he was operating his automobile at an unreasonable and excessive speed, and the question as to the speed of the defendant Hoxie's car was an important issue at the trial.

In the suit brought by the plaintiff Nash against the defendants Hunt and the defendant Hoxie, the jury returned a verdict in his favor against the defendant Hoxie, awarding him $50,000 in damages, but in the same verdict found in favor of the defendants Hunt. The defendant Hoxie's motion to set aside the verdict was denied and judgment was rendered on the verdict. In the second action, the jury found the issues for the plaintiffs Hunt and likewise awarded them $50,000 in damages against the defendant Hoxie. The defendant Hoxie's motion to set aside this verdict was conditionally granted, and a new trial ordered solely on the issue of damages unless the plaintiffs Hunt stipulated that judgments for $25,000 and $2823.67, respectively, be rendered for them. The stipulation and remittitur were filed by the plaintiffs Hunt and judgment rendered accordingly. From the judgments in both actions the defendant Hoxie has appealed.

The defendant Hoxie assigns error in the refusal of the trial court to set aside the verdicts against him in both actions, asserting that they are not supported by the evidence on the issue of liability, that despite the remittitur in the Hunt suit, the judgment in that case in favor of the plaintiff Carl Hunt is still excessive, that the court erred in admitting into evidence certain medical bills, and that the court erred in its charge to the jury concerning the credibility of witnesses and the weight to be given to their testimony, particularly with respect to the testimony of an expert witness produced by the plaintiffs Hunt. Other claims of error have either been abandoned or in the view which we take of the consolidated appeals, do not require discussion.

The plaintiff Nash and the Hunts offered evidence to prove and claimed to have proved the following facts: On March 9, 1969, the defendant Hoxie's automobile was traveling in a general westerly direction on route 44, and the Hunt automobile was traveling in a general southerly direction on Pinney Street. At the intersection of route 44 and Pinney Street, there was a stop sign and a stop line on Pinney Street north of route 44. Prior to the collision, Carl Hunt had stopped at the stop line on Pinney Street at the intersection, saw no traffic in either direction and proceeded to turn left in an easterly direction on route 44. From the stop line, Carl Hunt could see to the corner of a curve of route 44 to the east, a distance of approximately 500 feet. The Hunt vehicle was struck in the left front and the point of collision was approximately in the middle of the intersection. The collision caused the Hunt vehicle to move 104 feet from the point of impact up route 44 in a westerly direction before coming to rest. The Hoxie automobile left wiggly, uneven skid marks for approximately 144 feet from where they began to the point of impact.

During the trial, Officer Jules L. Bunel, of the Winchester police department, who investigated the accident, testified that, based on his investigation at the scene, on paint found on the highway surface and damages to the top and sides of the vehicle, he believed that the Hunt automobile overturned after the impact. Subsequently, the plaintiff Hunt produced as a witness a safety engineer, Alexander N. Chapman, and questioned him for the purpose of qualifying him as an expert witness. During this inquiry Chapman testified as to his educational background and experience and the existence of physics formulae by the application of which he could determine the speed at which the Hoxie car was being operated at the time of the collision. He testified that, based on the skid marks alone, it was his opinion that the car was going 56 miles per hour before it started to skid. He also testified that by the application of two accepted scientific formulae he could determine from the distance which the Hunt car was 'pushed' from the point of impact, the speed of the Hoxie car at the moment of impact. Referring to the earlier testimony of Officer Bunel that it was the officer's opinion as a result of his on-the-scene investigation that the Hunt car had rolled over after the impact, the court inquired of Chapman whether it would make a difference in his opinion as to speed if the Hunt car had not been pushed all the way but had rolled over. The witness responded: 'That could make a difference, if it rolled over.' At the conclusion of the preliminary inquiry, the court ruled that Chapman qualified as an expert witness, and he was permitted to testify as to the opinions which he had expressed. Regarding the specific question as to Chapman's opinion of the speed of the Hoxie car calculated upon the distance which the Hunt car had been 'pushed,' the court stated out of the presence of the jury: 'I will allow it (the question) on the basis of, at the moment, if they find that the car didn't roll over that the-that the car rolled over, then they are to disregard any estimate of speed based upon this particular question.' Thereafter, Chapman was permitted to tell the jury that he had determined by the application of the two scientific formulae that at the point of impact the speed of the Hoxie car was 72 miles an hour. ¹

In answer to a hypothetical question, ² Chapman was also permitted to state that in his opinion the Hunt car did not roll over.

The defendant Hoxie's counsel made all necessary objections and took proper exceptions to the court's rulings as to Chapman's qualifications as an expert and to his opinion testimony.

Despite the court's statement during the preliminary inquiry in the absence of the jury that it would permit Chapman to inform the jury of his opinion as to the speed of the Hoxie car predicated upon the distance the Hunt car was 'pushed' but would instruct the jury that if they found that the Hunt car in fact rolled over, then they were to disregard the estimate of speed based on how far the car was pushed, the court did not give the jury such an instruction. The only instruction given to the jury with respect to the testimony of expert witnesses was a statement in the opening portion of its charge: 'It is for you to determine the credibility of all witnesses whether experts in their specialized field or not, and the weight to be given their testimony.' At the conclusion of the charge, Hoxie's counsel in taking exceptions expressly questioned the adequacy of the charge with regard to the testimony of expert witnesses, stating: 'And finally-and I may have missed this, may it please the Court-whether or not Your Honor instructed the jury as to the basis upon which to judge expert testimony. In other words, that they could keep-that they could accept certain portions and not others and the matter of determining whether or not an expert should be judged by the normal rules of credibility of witnesses.' The court replied: 'I mentioned that at the beginning.'

" The determination of the qualification of an expert is largely a matter for the discretion of the trial court.' Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370, 372; Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73. The trial court's decision is not to be disturbed on appeal 'unless that discretion has been abused, or the error is clear and involves a misconception of the law.' 31 Am.Jur.2d 531, Expert and Opinion Evidence, § 31.' Siladi v. McNamara, 164 Conn. 510, 325 A.2d 277. We find no abuse of discretion or error in the ruling of the trial court that Chapman was qualified to testify in these cases as an expert witness.

We conclude, however, that the court did not adequately instruct the jury as to how they should consider and weigh the testimony of Chapman as an expert witness. His testimony, unlike that of the other witnesses, was not as to facts of which he had knowledge but as to his opinion based upon his expertise and upon facts which he was asked to assume by way of an hypothetical question. It was not sufficient merely to inform the jury that it was their function to determine the credibility of all witnesses alike, expert or nonexpert, and to determine the weight to be given to their...