State v. Frowein

• Decision Date: 09 September 1964
• Docket Number: No. MV,MV
• Citation: 3 Conn.Cir.Ct. 21,206 A.2d 657
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Henry H. A. FROWEIN. 16-9512.

Page 657

206 A.2d 657

3 Conn.Cir.Ct. 21

STATE of Connecticut v. Henry H. A. FROWEIN.

No. MV 16-9512.

Circuit Court of Connecticut, Appellate Division.

Argued April 27, 1964.

Decided Sept. 9, 1964.

John L. Calvocoressi, Hartford, for appellant (defendant).

Marvin W. Platt, Asst. Pros. Atty., for appellee (state).

DEARINGTON, Judge.

The state did not file a brief. Practice Book, § 1015. The defendant, following his conviction, appealed, assigning error in the court's conclusion that the defendant, upon all the evidence, was guilty of the crime charged beyond a reasonable doubt. No finding was requested. Pursuant to the defendant's assignment of error we turn to the evidence. Aside from the defendant's speed, the facts are not in serious dispute.

The defendant was operating his motor vehicle in a westerly direction on Asylum Avenue near its intersection with Cumberland Road, in West Hartford, at approximately 5:55 p. m. on November 7, 1963. The surface of the road was damp, and it was drizzling and dark. There was some eastbound traffic. In this area Asylum Avenue is forty feet wide with two marked westbound lanes. The defendant was in his passing lane, having just passed a car operated by Richard St. Jean, a witness for the state. On the south side of Asylum Avenue there were intersecting streets, including Cumberland Road, which extended in a southerly direction. On the north side of Asylum Avenue there was an open field, which was a part of the campus of St. Joseph's College, and there were no intersecting streets. As the defendant arrived in the vicinity of the Cumberland Road intersection, he observed a boy on a bicycle some sixty feet ahead of him. The boy was headed in a westerly direction, at an angle to the course of the highway and in the lane adjacent to the curb. At this time the boy pulled his bicycle to the left, and the defendant, observing this, blew his horn, applied his brakes and abruptly turned to his left. However, a collision resulted and the defendant's vehicle turned completely around before coming to rest on the south side of Asylum Avenue. The right side of the front fender of the defendant's vehicle came in contact with the left side of the bicycle. The point of impact was eleven feet eight inches south of the north curb of Asylum Avenue. The bicycle was black in color or and had no headlight but did have a small reflector, together with a strip of scotch reflector tape, attached to its rear fender. There were two overhead street lights in the area, one some forty-seven feet westerly, and the other some eighty feet easterly, of the point of impact. As a result of the accident, the boy was taken to a hospital. He was later interviewed by a police officer but could give no information as to the cause of the accident.

There was conflicting evidence on the part of the state as to the posted speed limit in this area. One witness testified that the posted limit was thirty-five miles per hour, and the other witness testified that the posted limit was thirty miles per hour. The state produced two witnesses, St. Jean and a police officer who had arrived at the scene sometime later. The defendant was the only witness for the defense. The only direct evidence introduced by the state as to the defendant's speed was that of St. Jean, who testified, in reference to the defendant's vehicle: 'I feel that this car went by me a speed of approximately fifty miles an hour.' He further testified that at this time the defendant's car was some distance from the place of the accident, and he estimated the distance as follows: 'I would say about two football-field lenghts. It was quite a distance.' The court takes judicial notice that a regulation football field is 300 feet in length, since such length is common knowledge. Muse v. Page, 125 Conn. 219, 225, 4 A.2d 329. The defendant testified that he did not know his exact speed but estimated it at thirty to thirty-five miles per hour, although, he stated, it was probably greater at the time he passed St. Jean.

The trial court concluded that the defendant was guilty of a violation of § 14-222 of the General Statutes. There are two sentences contained in subsection (a) of this statute, and each clearly states a separate interdict. The first sentence prohibits the operating of a motor vehicle upon a public highway of the state recklessly, having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions. The second sentence provides: 'The operation of a motor vehicle upon any such highway * * * at such a rate of speed as to endanger the life of any person other than an occupant of such motor vehicle * * * shall constitute a violation of the provisions of this section.' Since the complaint alleged '[v]iolation of Section 14-222 Reckless Driving,' it follows that the state was not limited to claiming a violation of one of said interdicts to the exclusion of the other.

Under the prohibition of the first sentence, the state is required to show reckless or wanton misconduct. In Brock v. Waldron, 127 Conn. 79, 84, 14 A.2d 713, 715, in which the plaintiff alleged reckless, careless and negligent operation of the defendant's automobile, the court, after summarizing the law on the subject of reckless or wanton misconduct, quoted as follows from Vanderkruik v. Mitchell, 118 Conn. 625, 631, 173 A. 900, 903: "In short, the evidence discloses that the primary cause of the collision was the thoughtless and careless maintenance of high speed at a point, where due care required that it be reduced; but as held, in effect, in * * * [Ascher v. H. E. Friedman, Inc., 110 Conn. 1, 147 A. 263] speed alone does not spell a reckless operation of the car within the meaning of the statute.' One is guilty of reckless misconduct when 'knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.' Restatement, 2 Torts, § 500.' There is no finding of a persistent course of conduct, nor of conduct persisted in...