Petrillo v. Kolbay

• Decision Date: 21 March 1933
• Citation: 165 A. 346,116 Conn. 389
• Court: Connecticut Supreme Court
• Parties: PETRILLO v. KOLBAY et al.

165 A. 346

116 Conn. 389

PETRILLO v. KOLBAY et al.

Supreme Court of Errors of Connecticut.

March 21, 1933

Appeal from Superior Court, New Haven County; Ernest A. Inglis Judge.

Action by Frank W. Petrillo, administrator of the estate of Joseph E. Petrillo, deceased, against Stephan A. Kolbay and others for damages for personal injuries and death of the plaintiff's decedent, alleged to have been caused by the negligence of the defendants, brought to the superior court and tried to the jury. Verdict for the defendants, motion to set aside the verdict denied, and the plaintiff appealed.

No error.

Charles S. Hamilton and Edward S. Snyder, both of New Haven, for appellant.

Fleming James, Jr., of New Haven, Edward R. Brumley, of New York City, and Richard H. Ireland, of South Norwalk, for appellee railroad company.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HAINES, Justice.

The complaint alleges, in substance, that the plaintiff's intestate was on his way between 8 and 9 o'clock in the evening of September 24, 1931, to the railroad station of the defendant New York, New Haven & Hartford Railroad Company, at South Norwalk, to purchase a ticket for his passage on a train to New Haven; that in approaching the station he was obliged to cross a tract of land on the north side of the station, owned by that defendant and maintained by it for the convenient passage of its passengers and the public generally; that because of the negligence of the company the area was not lighted and was in total darkness so it was practically impossible for the decedent to see or know of the approach of an automobile; that the defendants Kolbay were driving in an automobile across this tract of land at the same time, negligently at a high rate of speed, without watchfulness or suitable warning of its approach, and struck the decedent and injured him so severely that he died soon after.

All defendants entered a general denial, and pleaded that the decedent was guilty of contributory negligence.

The jury brought in a verdict for the defendants, together with the answers to two interrogatories which had been submitted to them by the court:

" Was the plaintiff's decedent, Joseph W. Petrillo, at the time of the collision which resulted in his death, on the premises of the defendant Railroad Company for the purpose either of buying a ticket or boarding a train? Answer: No.

" Was the plaintiff's decedent, Joseph W. Petrillo, guilty of any negligence which materially contributed to his injuries and death? Answer: Yes."

Errors are assigned in the denial of certain requests to charge the jury, in portions of the charge as given, and in rulings upon evidence. One other assignment of error is the refusal of the court to include in the finding a long transcript of evidence, for the presentation of certain rulings on evidence. None of these rulings are referred to in the statement of questions to be reviewed, or contained in the request for a finding, nor do they appear in any assignment of error. The court was not notified that a review of these rulings was desired, and thus was not required to include the statement of them in the finding. Banks v. Warner, 85 Conn. 613, 617, 84 A. 325; In re Clark, 79 Conn. 136, 138, 64 A. 12. Furthermore, the claimed transcript of evidence is not certified by the official stenographer, and does not conform to the requirements of our Rules for Appellate Procedure, § 8. In this state of the record we do not consider this assignment.

Many of the requests to charge are long, involved, and argumentative, and fall far short of compliance with our present rule that each request shall contain a single proposition of law, clearly and concisely stated, and a citation of authority. Practice Book, p 275, Insert; Smirnoff v. McNerney, 112 Conn. 421, 423, 424, 152 A. 399. In so far as these requests contain correct statements of law upon relevant facts, they were sufficiently complied with. One request is for a charge as to the duty of the defendant company to keep its station, platform, approaches, and this tract of land reasonably safe for those desirous of becoming passengers, and, in addition, as to the duty of the company to protect those having business with it from injury by members of the general public. These claims relate to the negligence of the company, and, even if the charges on this point had been inaccurate, it was harmless error, for the reason that the jury found, in response to the second interrogatory, that the decedent was guilty of contributory negligence. Bernier v. Woodstock Agricultural Soc., 88 Conn. 558, 564, 92 A. 160.

The court charged the jury concerning an attack upon the credit of a witness whose testimony was given by deposition, and who, it was claimed, had thereafter failed to obey a subpœ na to appear in person; that if a witness is subpœ naed to come to court, it is his duty to come even though he has already given a deposition and all counsel were present at the time, and that the jury could give such weight as they thought it deserved to such failure to respond. A man is bound to obey a subpœ na to come to court even though he has already deposed as to his testimony. The finding makes no reference whatever to this incident, and we have no information as to the circumstances beyond that furnished by the charge itself. If a witness, without adequate legal excuse, refuses to obey a subpœ na, the fact is a proper one for the trier to note in considering his deposition previously given. The fact that he had already given the deposition is not a legal excuse for failure to obey the...