Sitnik v. National Propane Corp.

• Decision Date: 25 July 1963
• Citation: Sitnik v. National Propane Corp., 151 Conn. 62, 193 A.2d 503 (Conn. 1963)
• Court: Connecticut Supreme Court
• Parties: Edward SITNIK et al. v. NATIONAL PROPANE CORPORATION et al. Supreme Court of Errors of Connecticut

Page 503

193 A.2d 503

151 Conn. 62

Edward SITNIK et al. v.NATIONAL PROPANE CORPORATION et al.

Supreme Court of Errors of Connecticut.

July 25, 1963.

Thaddeus Maliszewski, Hartford, for appellant(named plaintiff).

William R. Moller, Hartford, with whom were Edmund T. Curran, Hartford, and, on the brief, J. Ronald Regnier and Robert F. Taylor, Hartford, for appellees(defendants).

Before BALDWIN, C. J., and KING, MURPHY, SHEA, and ALCORN, JJ.

BALDWIN, Chief Justice.

The plaintiffEdward Sitnik and the coplaintiffs.Helen, Jacob, Zigmunt and Helen Rose Sitnik brought this action against the defendants, the Lehigh Bottled Gas Company, the National Propane Corporation, and Herman J. LaMarre, to recover for personal injuries and property damage received in an automobile accident on August 23, 1959.Edward, with the co-plaintiffs as his passengers, was driving his automobile in a northerly direction on Newfield Street in Middletown when it came into collision with a truck owned by the defendant corporations and driven by LaMarre, their servant and agent.The truck was traveling in a southerly direction on Newfield Street.By their verdict, the jury found for the plaintiffs Helen, Jacob, Zigmunt and Helen Rose, but for the defendants as to Edward.The defendants had pleaded two special defenses: (1) The accident resulted from an emergency created by a sudden stopping of an automobile in front of the defendants' truck.(2) Edward was chargeable with contributory negligence.The verdict for the coplaintiffs was tantamount to a finding by the jury that the defendants' negligence was a proximate cause of the accident and to a rejection of the defendants' special defense of an emergency which would excuse LaMarre's conduct.Edward moved to set aside the verdict against him on the ground that it was not supported by the evidence.The court denied the motion, and Edward has appealed, claiming error in the court's ruling on the motion, in the finding, and in two rulings on evidence.

The ruling on the motion to set aside the verdict presents the single question whether the jury could find Edward chargeable with contributory negligence.We review the evidence in the light most favorable to the verdict.Kazukynas v. N. C. Casciano & Sons, Inc., 149 Conn. 1, 2, 174 A.2d 796;Maltbie, Conn.App.Proc. § 189.The jury could reasonably find the following facts: The accident occurred in daylight on a straight section of Newfield Street.The traveled portion of the highway consisted of two lanes of concrete twenty-one feet and six inches wide, with eight-foot shoulders.A line painted white divided the two lanes.The traffic was heavy in both directions.The truck driven by LaMarre was following four or five car lengths behind a vehicle proceeding in the same direction.When this vehicle stopped, LaMarre applied his brakes, thereby causing his truck to sway to its left because of the heavy load of liquid gas in the tanks it was carrying, and to cross the center line of the highway into the northbound lane.Edward was approaching from the opposite direction at a speed estimated at twenty-five to thirty-five miles an hour.He saw the danger of an accident when he was seventy-five yards away from the truck.Just prior to the collision, he was 'riding the white center line.'A witness, John H. Peterson, who was driving an automobile which was following the Sitnik vehicle, saw the truck swerve from side to side and cross the center line as far as three to four feet into the northbound lane.Peterson did not see any brake lights from the Sitnik car, nor did he see Edward take any diversionary tactics to avoid the collision.From this evidence, the jury could reasonably find that Edward neither applied his brakes nor turned sufficiently to avoid the collision, although he had ample time and space to do so, and that these failures constituted negligence which was also a proximate cause of the accident.'[T]he duty to exercise ordinary care to avoid injury includes the duty to exercise ordinary care to observe and appreciate danger or threatened danger, and one is conclusively presumed to know and appreciate dangers which, under the same or similar circumstances, would have been known or appreciated by an ordinarily prudent person.'Corriveau v. Associated Realty Corporation, 122 Conn. 253, 258, 188 A. 436, 439;Farkas v. Halliwell, 136 Conn. 440, 444, 72 A.2d 648, and cases cited;seeKazukynas v. N. C. Casciano & Sons, Inc., supra, 149 Conn. 3, 174 A.2d 797;'The refusal of the trial court, which saw and heard the * * * witnesses, to disturb the verdict is entitled to weighty consideration in this court.'Kazukynas v. N. C. Casciano & Sons, Inc., supra, 149 Conn. 4, 174 A.2d 797;Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760;Maltbie, Conn.App.Proc., p. 233.There was no error in the denial of the motion.

We consider next two rulings on evidence challenged as erroneous.During Edward's cross-examination of the police officer who investigated the accident and who was produced as a witness by the defendants, Edward offered in evidence two written statements, one taken by the officer from LaMarre and the other from Edward.Edward claimed that they were competent evidence under General Statutes § 52-180 as entries made in the regular course of police department business and that they were material as...