Oborski v. New Haven Gas Co.

• Decision Date: 09 January 1964
• Citation: 197 A.2d 73,151 Conn. 274
• Court: Connecticut Supreme Court
• Parties: Peter OBORSKI v. NEW HAVEN GAS COMPANY. Supreme Court of Errors of Connecticut

Page 73

197 A.2d 73

151 Conn. 274

Peter OBORSKI v. NEW HAVEN GAS COMPANY.

Supreme Court of Errors of Connecticut.

Jan. 9, 1964.

Morris Tyler, New Haven, with whom, on the brief, was Peter C. Dorsey, New Haven for appellant (defendant).

Joseph F. Ryter, Hartford, with whom were William T. Holleran, New Haven, and, on the brief, William J. Singer, Hartford, for appellee (plaintiff).

Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ. MURPHY, Associate Justice.

The defendant is engaged in the distribution of gas to its customers in New Haven through underground mains and pipelines. The plaintiff brought suit to recover for severe, painful and permanent injuries which he sustained when an accumulation of gas, which he alleged had leaked from the defendant's distribution system into a manhole in a recently constructed sewer line, exploded just after the plaintiff had descended into the manhole to make an inspection of it in the course of his employment. The complaint alleged that the defendant was negligent in that it failed to inspect its gas lines; in that it knew or should have known that gas from its service was leaking; in that it failed to take proper precautionary measures to ascertain the cause and place of leakage; in that it failed to take proper precautions to prevent the seepage of gas into the manhole in which the plaintiff was working; and in that it failed to take proper measures to remedy the dangerous situation which resulted from the seepage of gas. The defendant denied the allegations of negligence and in a special defense charged the plaintiff with contributory negligence in that he entered or worked in the manhole with a lighted cigarette or open flame when he knew or should have known of the presence of gas in the manhole. The jury returned a verdict of $60,000 for the plaintiff, and the trial court refused to set it aside. The defendant has appealed. In its assignments of error, it claims that the court erred in making a finding of the claims of proof of the parties; in refusing to include in three paragraphs of the finding all of the colloquy and answers which were set out in three paragraphs of the draft finding; in finding without evidence certain facts in twelve paragraphs of the claims of proof; in certain rulings on evidence; and in denying the defendant's motion to set aside the verdict because it was not supported by the evidence and was excessive.

The defendant in its request for a finding restricted the questions of law which it desired to have reviewed to claimed errors in rulings on evidence, and it filed a draft finding limited to those rulings. The trial court insisted that a finding of the claims of proof was necessary and required the defendant to file a supplemental draft finding containing a recital of the facts which the respective parties offered evidence to prove and claimed to have proved. Subsequently, the court made a finding and included in it sixty-two paragraphs of the claims of proof of the parties which were entirely unnecessary because of the questions of law involved. The insistence on the supplemental draft finding placed an undue burden on the parties in preparing the draft finding and counterfinding--since the parties had to recite their respective claims of proof--and made it essential that the defendant, in order to protect its interests, assign such errors as it claimed were in the part of the finding setting forth the claims of proof; both parties then had to brief those assignments. A finding of the facts which the respective parties offered evidence to prove and claimed to have proved was, at the time the finding was prepared, necessary in a case tried to the jury only when error was claimed in the charge. Lucas v. South Norwalk Trust Co., 121 Conn. 201, 203, 184 A. 157. As there is no claim that the charge was erroneous, the assignments of error directed to the portion of the finding devoted to the claims of proof need not be considered.

Paragraphs 68 and 69 of the finding are corrected, in response to the third assignment of error, to include the colloquy and answers in the omitted portions of paragraphs 6 and 7 of the draft finding. So far as the third assignment of error is concerned with paragraph 63 of the finding, the assignment is not directed, as is the argument in the defendant's brief, to the narrative statement of what preceded or followed the ruling on evidence but rather to the omission of the colloquy and answers contained in paragraph 1 of the draft finding. As the colloquy and answers were not omitted, the assignment has no merit.

The first witness called by the plaintiff in the trial was the safety supervisor for the defendant. He identified a work record, made by a company foreman, which reported the replacement, on September 29, 1955, of twenty-seven feet of gas service line between the main in the street and premises at 235 Rosewood Avenue because the service line was 'leaking and rusted out.' The plaintiff offered the record as an exhibit 'to show a condition that existed on September 27 or prior thereto.' The narrative statement of the background of this ruling is devoid of any facts which would allow the admission of the work record for the purpose claimed. The finding does not show that the defendant at any time made a categorical objection to the offer. The court, however, asked a series of questions of counsel and the witness. The answers indicated that the explosion occurred on September 27 at a distance of about 500 feet from the gas line servicing 235 Rosewood Avenue and that this line was found to be leaking and rusted two days later when it was dug up. The court admitted the work record as a full exhibit, stating that the court could, at the moment, see a possible relevancy. The defendant excepted to the ruling.

Upon the record as presented to us, the ruling was erroneous. There was nothing to show any connection between the condition of the service line on September 29 and the explosion two days before. It so happens that this error is not harmful in this instance because the foreman who made the report thereafter testified as to the circumstances under which the leak at 235 Rosewood Avenue was detected, the age and condition of the pipe when it was removed, and the size of the leak. This evidence, coupled with other evidence relating to conditions which existed on Rosewood Avenue before and after the explosion, would have provided, had it preceded the admission of the exhibit, sufficient foundation for its admission as a document from which the jury could draw reasonable inferences concerning the cause of the explosion. Reciprocal Exchange v. Altherm, Inc., 142 Conn. 545, 548, 115 A.2d 460; Shaughnessy v. Morrison, 116 Conn. 661, 664, 165 A. 553.

There is no error in the exclusionary rulings on evidence in which error is claimed in assignments 14 and 15. Both of the questions called for answers which would have been guesses and speculative. Assignment 17 is directed to a ruling during cross-examination of a defense expert. The ruling became harmless when the expert answered that the plaintiff's supposition was not necessarily correct and the expert's later exposition showed why.

The two remaining assignments of error (Nos. 19, 20) in rulings on evidence which have been briefed stem from the testimony of Clair O. Dorne, a witness who professed to have the experience and qualifications which would permit him to give expert testimony for the plaintiff on the subject of gas explosions and the relationship and conduct of the parties under the circumstances of this case. The witness testified that since 1936 he had been a licensed engineer in Connecticut; that he owned and operated a testing laboratory in which all sorts of tests except those involving health matters were done; and that he had been hired as a consulting engineer by three gas companies at different times to 'make tests on explosions where property loss...