Notarfrancesco v. Smith

• Citation: 105 Conn. 49,134 A. 151
• Court: Supreme Court of Connecticut
• Decision Date: 30 July 1926
• Parties: NOTARFRANCESCO v. SMITH.

134 A. 151

105 Conn. 49

NOTARFRANCESCO v. SMITH.

Supreme Court of Errors of Connecticut.

July 30, 1926

Appeal from Superior Court, Hartford County; L. P. Waldo Marvin Judge.

Action by Ismaele Notarfrancesco, administrator, for damages for the death of his intestate, against Hillard Smith tried to a jury. Verdict and judgment for defendant, and plaintiff appeals. No error.

Failure to instruct on last clear chance held not error where plaintiff contended pedestrian was killed, when three-fourths of way across street, by automobile turning to left.

Frank Covello and Francis A. Pallotti, both of Hartford, for appellant.

Joseph F. Berry, of Hartford, for appellee.

CURTIS, J.

The plaintiff offered evidence to prove that plaintiff's decedent, De Rosa, proceeded from the west curb of Windsor street, in Hartford, between two cars parked on the westerly side of the street, and, as he emerged from between the cars and started to cross the street, the defendant, who was driving his automobile southerly on Windsor street, Hartford, at a moderate speed, when about 36 feet distant from him, turned his car to the left, causing it to strike De Rosa when he had reached a point about three-quarters of the way--34 feet--across the street. After the automobile passed over the east curb, it proceeded on until it struck a building on the east side of the street, and then defendant backed the car out, and it again passed over the body of De Rosa. The brakes on defendant's automobile, both foot and emergency, at the time of the accident were defective. If defendant had continued on in a southerly direction instead of turning to the left, De Rosa would have crossed the street in safety. If defendant had had his automobile equipped with proper brakes, and had seen, or should have seen, De Rosa, he could, by applying his brakes, have stopped his car within 22 feet. The defendant, before reaching decedent, did not sound a horn or give any warning of his approach. De Rosa received injuries from which he died.

Defendant offered evidence to prove that he noticed the decedent as he was about to come out between the two cars parked on the westerly side of this street, and was then about 36 feet distant from him, or three lengths of his car. On reaching De Rosa, he suddenly started to cross from the west to the east side of the street in the path of defendant's automobile. Defendant blew his horn twice. The decedent looked towards the approaching car, and, when it was about 6 to 8 feet distant from him, suddenly hurried directly into the path of the automobile. The defendant attempted to avoid striking decedent by turning his car to the left, but the distance was so close that the right-hand front fender struck him, and dragged him across the street. Defendant, before making this turn, had been driving his car about 2 to 3 feet from the parked automobiles on the west. He was keeping a proper lookout, and gave suitable warning to decedent, who paid no heed to it, but endeavored to cross in front of the automobile when it was extremely hazardous to do so. The defendant could not have stopped the car in this distance. His brakes were in good working order. He did not use the brakes because he could not have stopped the car in time with them. The street was clear, except for the parked cars, and there were no other vehicles in motion at or near the scene of the accident. The decedent was guilty of negligence which essentially contributed to cause his death, and the defendant's own negligence did not materially contribute to cause decedent's death.

The evidence in this case was not certified up. No claim was made that the finding should be corrected under General Statutes, § 5829. We have before us a case presenting merely the pleadings and the facts which each party claimed to have proved. In such a situation it must be borne in mind that the jury could find any fact claimed to have been proved as proved or not proved. The jury may be deemed to have found each fact proved as to which the defendant offered evidence and claimed to have proved, and that each fact was not proved which was claimed to have been proved by the plaintiff.

The questions presented by the reasons of appeal in this case are whether the court erred in view of the pleadings and the facts claimed to have been proved, in its charge to the jury as set forth in the appeal, or in its refusal to charge as requested.

The plaintiff claimed that " the court erred in failing to charge the jury that due care on the part of the deceased may be proved by circumstantial evidence." The law raises no distinction between direct and circumstantial evidence. A fact may be testified to by a witness as having been seen by him, also a series of facts may be so testified to, and the jury may be asked to consider what are reasonable and fair conclusions and inferences to be drawn from such fact or series of facts if proved. Negligence or contributory negligence cannot be testified to as having been seen. The most that a witness can do is to testify to the conduct of a party as seen by him. He cannot testify as to his own conclusion or opinion as to whether such conduct amounted to negligence. The jury must draw the conclusion as to whether or not the conduct testified to (if the testimony is credited) constituted negligence.

In the case of State v. Rome, 64 Conn. 331, 30 A. 57, the court quotes with approval this citation from a charge by Hammersley, J., in that case: " It is sometimes said that circumstantial evidence is not as satisfactory as direct evidence. As a general proposition, that is not true. Indeed all evidence is essentially circumstantial evidence; that is, evidence in every case consists in the proof of certain circumstances from which," the trier is asked, " in the exercise of reason and common sense," to make inferences. The court further said, in substance, on page 332, (30 A. 58), it is plainly to be seen that in every case inferences must be drawn from circumstances, and " that all satisfactory proof must depend on circumstantial evidence," and, further, that " for the practical purposes of a trial there is no difference between what is called circumstantial evidence and what is called direct evidence, and that any attempt to so...