Robinson v. Faulkner

• Decision Date: 12 July 1972
• Citation: 163 Conn. 365,306 A.2d 857
• Court: Connecticut Supreme Court
• Parties: David L. ROBINSON v. William FAULKNER, Jr., et al.

Page 857

306 A.2d 857

163 Conn. 365

David L. ROBINSON v. William FAULKNER, Jr., et al.

Supreme Court of Connecticut.

July 12, 1972.

Mitchel W. Garber, New Haven, for appellant (plaintiff).

Kevin T. Gormley, New Haven, for appellees (defendants).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ.

LOISELLE, Associate Justice.

The plaintiff brought this action to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. The defendants denied the allegations of negligence and pleaded contributory negligence on the part of the plaintiff. The jury returned a verdict for the defendants and the plaintiff has appealed.

Claims of error in the court's refusal to charge as requested, in charging as it did, and in its rulings on evidence are determined by the finding. Practice Book § 635; Busko v. DeFilippo, 162 Conn. 462, 464, 294 A.2d 510; Moonan v. Clark Well-point Corporation, 159 Conn. 178, 180, 268 A.2d 384. Relevant to the assignments of error attacking the charge to the jury are the claims of proof.

The plaintiff's claims of proof are as follows: David Robinson, hereinafter called the plaintiff, and William Faulkner, Jr., hereinafter referred to as the defendant, were employees of Pratt and Whitney Aircraft Company at its plant on Washington Avenue, North Haven, Connecticut. The plaintiff completed his night shift each day at 7 a.m.; the defendant's day shift commenced at 7 a.m. Pratt and Whitney Aircraft Company has on its property in North Haven roads and parking facilities. The roads at the plant are marked with center lines and crosswalks. Guards control pedestrian and vehicular traffic. On March 22, 1965, at about 7:05 a.m., the plaintiff and others, after completing their shift, left a building of their employer and proceeded to a sidewalk fronting the building. While the plaintiff Lane in a crowd that was pushing out into the crosswalk, the defendant was operating a vehicle north on Lycoming Lane approaching this area. The plaintiff was jostled and moved off the sidewalk into the marked crosswalk, where the vehicle operated by the defendant struck him with great force, inflicting the injuries alleged. At the time of the incident, the defendant was operating his vehicle either at or in excess of the posted speed limit of ten miles per hour. The defendant did not sound his horn, turn his vehicle away from the crowd or apply his brakes. The defendant operated his vehicle no more than three feet from the curb of the sidewalk for at least fifty feet before he struck the plaintiff and he failed to observe the hand signal of the guard to stop. The defendant, although rarely late for work, was late on this morning.

On the other hand, the defendant claims to have proved that as he was proceeding north on the private road of his employer there were at least two vehicles preceding him. The defendant observed a guard about 300 feet ahead who had stopped pedestrian traffic on the curb and sidewalk and was motioning northbound traffic to continue moving. The defendant reduced the speed of his vehicle to approximately ten miles per hour as he approached the guard. The defendant had to pass between the guard and the curb on which the pedestrians were standing. As the defendant was moving through this area, at about three feet from the curb, an unknown person pushed or jostled the plaintiff off the curb. The plaintiff was struck by the defendant's vehicle. The defendant applied his brakes immediately and stopped a short distance from the point of impact.

The plaintiff assigns error in the court's refusal to charge as requested concerning the right-of-way of a pedestrian at or near a crosswalk and in directing in effect that there was no right-of-way in a pedestrian. Section 14-300 of the General Statutes gives the right-of-way to pedestrians at crosswalks on highways. An examination of § 14-300 and its predecessors indicates that the legislature intended the regualtion to apply to public highways. The statutory definition of 'crosswalks,' § 14-297 of the General Statutes, refers to 'that portion of a highway.' While § 14-297 does not define highway, the general definitions applicable to title 14 establish that a highway is any 'orad, street, . . . driveway . . . or place, under the control of the state or any political subdivision thereof.' § 14-1(16). The offer of proof is devoid of any circumstances which could give a statutory right-of-way to a pedestrian under § 14-300 which alone affords such a right. Flynn v. Raccuia, 146 Conn. 210, 214, 148 A.2d 763.

The plaintiff asserts that the standard or duty of care owed to a pedestrian at a crosswallk is the same on a public and a private way. At common law, in the absence of statute or municipal regulations, motor vehicles and pedestrians have equal rights on the highway. Caschetto v. Silliman & Godfrey Co., 126 Conn. 22, 24, 9 A.2d 286; Peterson v. Meehan, 116 Conn. 150, 154, 163 A. 757. As previously noted, the statutes applicable to crosswalks apply only on public roads. Lycoming Lane is a private road under the control of Pratt and Whitney Aircraft Company and therefore not a highway under the statutory definition. It has long been established that the essential feature of a highway is that it is a road or way open to the use of the public. Stavola v. Palmer, 136 Conn. 670, 683, 684, 73 A.2d 831; Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, 154 Conn. 674, 680, 228 A.2d 513. The distinction between private and public roads is essential and cannot be overlooked here, because no evidence was presented to indicate that Lycoming Lane could be confused with a public road. See McInerney v. New England Transportation Co., 131 Conn. 633, 634, 41 A.2d 764. The court was not in error in its charge that the allegations of negligence relating to the pedestrian's right-of-way or to a higher degree of care owed to him were not applicable in this fact situation.

The next assignment of error relates to the court's supplemental charge regarding unavoidable accident. Instructions concerning unavoidable accident should usually be given only when the record can support a finding that the negligence of neither party is involved. When a foundation, has been established for the charge, it is within the sound discretion of the trial judge to determine whether a charge should be given on the subject of unavoidable accident. Cramer v. Barlow, 138 Conn. 352, 355, 84 A.2d 795; see Seney v. Trowbridge, 127 Conn. 284, 16 A.2d 573; note, 65 A.L.R.2d 12. The trial judge's decision depends on the peculiar circumstances of each case, as no rule of thumb can be relied on as a guide for all situations. In any event, it would not be error to refuse a charge on unavoidable accident if there were adequate instruction on negligence, proximate cause and burden of proof. Hedberg v. Cooley, 115 Conn. 352, 355, 161 A. 665. The court could have determined that the accident happened in a split second, and that there was evidence that a third party could have been the sole cause of the accident. Under these permissible facts the court was not in error in charging as it did. Cramer v. Barlow, supra.

The plaintiff claims that the supplemental charge was prejudicial in that it highlighted and emphasized the possibility of unavoidable accident. The test applied to any part of a charge is whether the charge considered as a whole fairly presents the case to the jury so that no injustice will result. Enlund v. Buske, 160 Conn. 327, 331, 278 A.2d 815; Danehy v. Metz, 140 Conn. 376, 379, 100 A.2d 843. The supplemental charge taken with the original charge would not have confused or misled the jury. Although this instruction might have been better given in the body of the main charge, we find nothing in the record to indicate prejudice in the submission by the court of the subject immediately following the taking of exceptions by both counsel.

The plaintiff attacks eleven rulings on evidence including rulings which disallowed irrelevant questions and questions improperly framed. We have examined each of the eleven rulings. No precise and universal test of relevancy is furnished by the law, and questions must be determined in each case according to the teachings of reason and judicial experience. Branford Sewer Authority v. Williams, 159 Conn. 421, 425, 270 A.2d 546; State v. Towles, 155 Conn. 516, 523, 235 A.2d 639; National Broadcasting Co. v. Rose, 153 Conn. 219, 227, 215 A.2d 123. '(A trial) court has a wide discretion in its rulings on the relevancy of evidence.' State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473, 475; State v. Keating, 151 Conn. 592, 597, 200 A.2d 724, cert. denied, sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S.Ct. 654, 13 L.Ed.2d 557. Nothing in the record indicates that this discretion was abused.

The plaintiff also assigns as error the refusal of the trial court to allow questions which required the witness to state an opinion or conclusion. The general rule remains that witnesses must state facts and not their individual opinions. Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776; Sydleman v. Beckwith, 43 Conn. 9. There are exceptions to this rule and it has been recognized that a witness may offer his opinion or impression of conditions and circumstances when these are so numerous or complicated that they could not otherwise reasonably be described to the jury. State v. McGinnis, 158 Conn. 124, 131, 256 A.2d 241; MacLaren v. Bishop, 113 Conn. 312, 314, 155 A. 210. In light of the availability of facts which could have been clearly described to the jury, it was within the discretion of the treial court properly to exclude opinions and conclusions of the witness. Atwood v. Atwood, 84 Conn. 169, 174, 79 A. 59.

The remaining rulings on evidence to be considered involve the plaintiff's assertion that his counsel should have been allowed to cross-examine the defendant concerning the...