Rockhill v. White Line Bus Co.

• Decision Date: 06 April 1929
• Citation: 109 Conn. 706,145 A. 504
• Parties: ROCKHILL v. WHITE LINE BUS CO.
• Court: Connecticut Supreme Court

145 A. 504

109 Conn. 706

ROCKHILL v. WHITE LINE BUS CO.

Supreme Court of Errors of Connecticut.

April 6, 1929

Appeal from Superior Court, Fairfield County; Carl Foster, Judge.

Action by Evelyn Rockhill against the White Line Bus Company to recover damages for personal injuries alleged to have been caused by defendant's negligence. The action was tried to a jury, and resulted in a verdict and judgment for $6,700 for plaintiff. From the judgment, defendant appeals. No error.

Hugh J. Lavery, of Bridgeport, for appellant.

David Goldstein, of Bridgeport, for appellee.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and BOOTH JJ.

HAINES, J.

The plaintiff was a passenger for hire in a bus operated by the defendant in the city of Bridgeport, and was injured when the bus collided with a standing truck. The defendant moved the court to set aside the verdict, and upon the denial of the motion appealed to this court, assigning three grounds of error: (a) In refusing to set the verdict aside; (b) that the verdict was excessive; and (c) in admitting the statement of the defendant's bus driver as part of the res gestae . The reasons assigned in the motion to set the verdict aside are that it was contrary to law, and contrary to and against the weight of the evidence.

It does not appear from the record that any claim was made to the trial court that the verdict was excessive or that that question was ever passed upon by that court. In any event, we cannot say from the evidence, all of which is before us, that the verdict was so unreasonable that it was the duty of the trial court to set it aside. If the jury believed the evidence given in behalf of the plaintiff, as they were privileged to do, the verdict does not impress us as excessive. Moreover, fixing the amount of damages is peculiarly the province of the jury, and, being accepted by the judge, who also heard all the evidence, this court will not overrule such action save for compelling reasons, and these do not appear in this case. The negligence of the defendant's driver is not contested in argument or brief and the apparently conceded fact that the bus ran into a standing truck goes far in itself to establish this feature of the case. It is argued that there was contributory negligence on the part of the plaintiff, but we are satisfied this claim was not maintainable, according the plaintiff the most favorable construction of the evidence, as we are required to do.

The third assignment of error is the admission of the testimony of the truck driver that the bus driver told him the reason for the collision was the failure of the brakes on the bus. The evidence was admitted over the objection of the defendant on the ground that the statement of the bus driver was part of the res gestae .

If after an occurrence of this sort had taken place, so it could not be considered otherwise than as a past occurrence, some one had asked the driver of the bus what caused it to run into the truck, his answer " no brakes," as it related to a past event, would not have been admissible as part of the res gestae . McCarrick v. Kealy, 70 Conn. 642, 40 A. 603; Morse v. Consolidated Ry. Co., 81 Conn. 395, 71 A. 553.

The appellee, however, urges that under the circumstances of this case and the authority of Perry v. Haritos, 100 Conn. 476, 124 A. 44, the admission of this evidence was proper. The element of time is an important, and in most cases a decisive, factor in determining whether the declaration is so nearly contemporaneous with the event to which it relates as to make it essentially a part of the event itself. But in other cases the circumstances may be such that it is necessary to consider another element, that of the spontaneity of the utterance; and in determining whether it is of this character ...