Nichols v. Nichols

• Court: Supreme Court of Connecticut
• Writing for the Court: MALTBIE, Chief Justice.
• Citation: 13 A.2d 591,126 Conn. 614
• Parties: NICHOLS v. NICHOLS et al.
• Decision Date: 01 May 1940

13 A.2d 591

126 Conn. 614

NICHOLS
v.
NICHOLS et al.

Supreme Court of Errors of Connecticut.

May 1, 1940

As Amended on Denial of Reargument June 13, 1940.

Appeal from Superior Court, Fairfield County; John A. Cornell, Judge.

Action by Sylvia Nichols against Frederick E. R. Nichols and another, to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. From a verdict and judgment for plaintiff, defendants appeal.

[126 Conn. 615] [13 A.2d 592] Martin E. Gormley, of New Haven, for appellant (defendant combs).

Samuel G. Payne and Arthur M. Comley, both of Bridgeport, for appellant (named defendant).

Bernard S. Peck, David Goldstein, and Arthur B. Weiss, all of Bridgeport, for appellee (plaintiff).

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

MALTBIE, Chief Justice.

The plaintiff, about fifteen years old at the time of the occurrence in question, and her sister, somewhat older, were riding in an automobile driven by their mother, which was proceeding northerly on a highway in Middletown when it came into collision with a car proceeding in the opposite direction driven by Raymond Combs. The mother and both daughters were thrown out upon the pavement, the mother was killed and the daughters were both very [126 Conn. 616] seriously injured. The plaintiff and her sister brought separate actions to recover for their injuries against Combs and against their brother, Frederick E. R. Nichols, who owned the car in which the plaintiff was riding, his liability being placed upon the ground that the mother was operating it at the time as a family car. Both daughters recovered large verdicts against both defendants and the latter have appealed, Combs from the denial of a motion to set the verdict aside as to [13 A.2d 593] him, and Nichols from the denial of a similar motion and also from the judgment. Only the action brought by the plaintiff is before us, it being stipulated that a like judgment to that entered upon this appeal should also be entered in the appeal taken by her sister.

The plaintiff makes two rather inconsistent claims of liability on the part of the defendants: As against Nichols she claims that the car in which she was riding, proceeding with tires worn smooth on a slippery pavement, slid from its own side of the road to that on which the Combs car was coming, directly into its path, when the cars were about twenty-five feet apart, and though Combs promptly applied his brakes he ran into it; as against Combs, she claims that there was a third car parked or moving on the same side of the road and headed in the same direction as that of Combs, that when the car of Combs and the Nichols car were some sixty-five or seventy feet apart Combs tried to pass the third car and when they were about twenty-five feet apart the car of Combs was straddling the center of the highway, and the collision with the Nichols car resulted. Combs claims that the collision was entirely due to the skidding of the Nichols car as stated in the plaintiff's first claim, and that there was no third car present. Nichols claims that the collision was due entirely to the car of Combs turning out to pass the third car and so passing to its left of the [126 Conn. 617] center of the highway, and colliding there with the car in which the plaintiff was riding. Whether or not there was a third car present as claimed by the plaintiff and Nichols, becomes, therefore, a vital element in the case.

A conclusion that there was a third car involved in the accident depends only upon the testimony of the plaintiff. It is true her sister made a very weak and ineffective effort to corroborate this testimony but finally admitted that she did not see the third car. That such a car was present is denied emphatically by Combs, and six disinterested witnesses testified that they did not see any such car. While the evidence of three of them might reasonably have been somewhat discounted by the jury on the ground that their opportunities of observation were such that they might not have seen it had it been there, the only witness of the actual collision, who was in a position to see all that took place, testified that there was no such car; and two of the witnesses who gave like testimony were at a gas station about one hundred twenty-five feet south of the place of the accident and on hearing the crash turned at once to look and proceeded promptly to the place where it occurred, and had there been a third car present these witnesses could not have well avoided seeing it. The only testimony as to the injury to the Nichols car was that it was on its right side; photographs of the car in evidence corroborate this; and it is not possible to conceive how this would have been so had the car of Combs collided with the Nichols car in the way in which Nichols claimed that it did. The jury could not reasonably have reached the conclusion that there was any third car involved in the accident.

With this element in the case eliminated, the jury could only reasonably conclude that Combs was proceeding [126 Conn. 618] on his own right side of the road, at a speed not over thirty-five miles an hour; it is true that the plaintiff testified that his car was coming ‘ fast’ and ‘ very fast’ but she had only a momentary vision of it and such testimony is entitled to but little weight as indicating any definite speed. Martino v. Connecticut Co., 109 Conn. 559, 561, 147 A. 20; Sarver v. Morrow, 121 Conn. 697, 699, 183 A. 739. Combs and Nelson, the only disinterested witness who saw the actual collision, testified that the...