Penna v. Esposito

Decision Date10 November 1966
Citation224 A.2d 536,154 Conn. 212
CourtConnecticut Supreme Court
PartiesAnthony PENNA et al. v. Michael ESPOSITO.

Jerrold H. Barnett, New Haven, with whom was Frank W. Sledziona, New Haven, for appellants (plaintiffs).

John C. Flanagan, New Haven, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

THIM, Justice.

This case arose as a result of an intersection collision in the city of New Haven between automobiles operated by the named plaintiff, hereinafter referred to as the plaintiff, and the defendant. The plaintiff charged the defendant with various acts of negligence. After a trial in the Superior Court, the jury found the issues for the defendant, and judgment was rendered accordingly. The plaintiff assigned error in the court's failure to charge the jury concerning an inference which the plaintiff felt the jury must draw from the failure of the defendant to produce certain witnesses at the trial. The plaintiff also claims that the court erred in instructing the jury to disregard certain allegations of negligence contained in his complaint. To put these claims in proper perspective a recitation of certain facts is necessary.

At the trial, the plaintiff offered evidence which tended to prove that at the intersection where the accident occurred the defendant was required to yield the right of way to vehicles approaching from his left and that, although he should have seen the plaintiff's car approaching, he in fact did not. Evidence was also offered that the plaintiff's vehicle had almost cleared the intersection when the right front end of the defendant's automobile struck the right rear end of the plaintiff's car. The defendant claims to have proved that he stopped his vehicle for a stop sign at the intersection and that he then drove slowly into the intersection where the accident occurred.

The defendant did not call any witnesses during the trial. He was, however, called as a witness by the plaintiff. General Statutes § 52-178. Upon direct examination by the plaintiff's counsel, the defendant testified that at the time of the accident there were five passengers in his car: two adults and three children. He claimed he did not know who they were. No further explanation was offered when he was cross-examined by his own attorney. The defendant did not take the stand in his own behalf to explain how it was that he did not know any of his five passengers.

The plaintiff requested, in writing, that the court charge the jury as follows: 'The failure of one party to produce a witness within his own knowledge raises an inference where a prima facie case is made out that if the evidence were produced it would be antagonistic to that party's present contention.' The court refused to give this charge, and the plaintiff claims that in doing so it erred.

If a properly composed request to charge is submitted to the court, it would be error for the court to refuse it. The charge which was requested, however, was not such a charge. The charge as requested would make the inference mandatory rather than permissive. This was erroneous. Also, the request assumes, without leaving it as a fact to be decided by the jury, that the potential witnesses were in fact known to the defendant. This, too, was erroneous. As the request to charge misstated both the evidence and the law, it was certainly not error for the court to refuse to give it. Bernard v. Ribner, 151 Conn. 670, 673, 201 A.2d 658; Crowder v. Zion Baptist Church, Inc., 143 Conn. 90, 100, 119 A.2d 736.

The plaintiff's second claim of error relates to the court's instruction to the jury to disregard a certain portion of the complaint. The complaint, among other specifications of negligence, alleges that the defendant 'drove his motor vehicle with defective or inadequate...

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22 cases
  • State v. Turcio
    • United States
    • Connecticut Supreme Court
    • June 26, 1979
    ...State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536; Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69." The charge in the instant case was well balanced. Prior to giving the co......
  • State v. Ralls
    • United States
    • Connecticut Supreme Court
    • December 31, 1974
    ...State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536; Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d The judge's statements, to a jury which had shown no indication of a deadlock......
  • State v. Annunziato
    • United States
    • Connecticut Supreme Court
    • September 16, 1975
    ...State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536. Where, however, the claimed error concerns a federal constitutional question, the controlling test, and the one used in this i......
  • State v. Corchado
    • United States
    • Connecticut Supreme Court
    • December 14, 1982
    ...v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288 (1970); Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536 (1966); Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69 (1964); and, in appeals involving a constitutional question, wheth......
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