Stephanofsky v. Hill

• Decision Date: 07 February 1950
• Citation: 71 A.2d 560,136 Conn. 379
• Parties: STEPHANOFSKY v. HILL. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 560

71 A.2d 560

136 Conn. 379

STEPHANOFSKY v. HILL.

Supreme Court of Errors of Connecticut.

Feb. 7, 1950.

Charles G. Albom, New Haven, on the brief, was Joseph N. Perelmutter, Seymour, for appellant.

Henry J. Lyons, Bridgeport, on the brief, was J. Kenneth Bradley, Bridgeport, for appellee.

Before MALTBIE, C. J., and BROWN, DICKENSON and INGLIS, ¹ JJ.

BROWN, Judge.

The plaintiff administrator sued the state highway commissioner for damages for the death of his son, the intestate, alleged to have resulted when his automobile collided with posts at a culvert by reason of the defective condition of the state highway at that point. The court rendered judgment for the defendant pursuant to the jury's verdict, and the plaintiff has appealed on the sole ground that the court erred in a ruling upon evidence. The limitation of the issue on appeal to the real point of serious controversy is to be highly commended.

About 1:40 a. m. on October 5, 1947, the intestate was driving his car southerly on a state highway in Seymour and ran into posts surrounding a culvert on the west edge of the highway. The car broke off one of the posts and damaged two others, continued along on the roadway for thirty feet, climbed the embankment to the west, and proceeded on until it re-entered the highway and turned over at a point ninety feet south of the point of impact. The intestate was thrown out and fatally injured. There was evidence that under the conditions the location of the culvert posts rendered the highway defective at this point. The claims of the parties were conflicting as to the speed of the car, the plaintiff claiming that it was from twenty-five to thirty miles per hour and the defendant that it was from forty-five to fifty miles per hour. As the case was presented to the jury, a determinative issue was whether or not the intestate was guilty of contributory negligence. The jury answered an interrogatory based on this issue in the affirmative. A material faactor involved in this finding was the speed of the intestate's car.

A state policeman, through whom the plaintiff introduced certain photographs of the damaged car and of the locus testified that he had had eleven years' experience as a police officer, that most of his time was spent investigating accidents and that he had been acting as a photographer for eight years and took photographs of accidents of a serious nature. He had not observed this accident, but the pictures were taken by him as a part of the routine of the investigation. The defendant later called him as a witness and counsel then recited that it had been testified that 'as a result of this accident at the four highway posts at the culvert one was pushed over to a forty-five-degree angle, another being a chestnut post eight inches in diameter at the base was broken off at the base flush with the ground, and the third was knocked flat and split down the middle; that thereafter the car went thirty feet according to marks on the road and up nine feet on that bank that is shown in Exhibit 'B,' and subsequently came to rest eighty feet from the point of the original impact, and that the body of the decedent was found nineteen and one-half feet farther south, that is, from the car.' Counsel then inquired of the witness whether, on the basis of that information, also taking into consideration the conditions existing that night, and of the condition of the automobile as shown in the photograph that he had seen and identified, and from what he had observed of the car itself, he had an opinion of the speed at which this vehicle was traveling immediately prior to the impact. After the witness had answered in the affirmative, he was asked: 'What in your opinion is that speed?' The plaintiff objected on the ground that there was no sufficient basis to warrant the witness' stating his opinion as to the speed of the car. The court allowed the question, observing, 'The objection goes to the weight rather than the admissibility.' The plaintiff duly excepted, and the witness answered, 'I would estimate it somewhere in the neighborhood of forty-five to fifty miles an hour.'

Our decisions recognize two distinct kinds of opinion evidence. 'The general rule is that witnesses must state facts and not their individual opinions, but there are exceptions to this rule as well established as the rule itself. Besides the case of experts where the subject matter requires special study, skill and experience, the opinions of common observers in regard to common appearances, facts and conditions have been received as evidence in a great variety of cases. * * * These [latter] exceptions to the general rule are allowed on the ground of necessity, where the subject of inquiry is so indefinite and general as not to be susceptible of direct proof, or where the facts on which the witness bases his opinion are so numerous or so evanescent that they cannot be held in the memory and detailed to the jury precisely as they appeared to the witness at the time. To render opinions of common witnesses admissible it is indispensable that the opinions be founded on their own personal observation, and not on the testimony of others or on any hypothetical statement of facts, as is permitted in the case of experts.' Sydleman v. Beckwith, 43 Conn. 9, 11. The principle justifying the admission of evidence of the second kind has often been applied. Spencer's Appeal, 77 Conn. 638, 643, 60 A. 289; Atwood v. Atwood, 84 Conn. 169, 172, 79 A. 59, 37 L.R.A.,N.S., 591; MacLaren v. Bishop, 113 Conn. 312, 314, 155 A. 210; State v. McCarthy, 133 Conn. 171, 176, 49 A.2d 594. Testimony of this nature is not admitted as the expression of opinion by an expert. Barber v. Manchester, 72 Conn. 675, 684, 45 A. 1014.

The hypothetical question put in the instant case and the fact that the only knowledge of the accident which the witness had by his own observation was acquired on the morning after it happened, when the damaged car had been removed, make clear that the inquiry was one calling for his opinion as an expert and so was not rendered admissible by the authority cited above. When this kind of expert evidence is offered, proper objection can require the court to deal with it in two distinct procedural steps in order to determine its admissibility: first, to pass upon whether the witness is duly qualified to testify as an expert; and, second, to pass upon whether the question calling for his opinion is itself properly admissible. The objection which the plaintiff interposed involved a ruling by the court upon the second ground only. This called for the determination whether the facts as incorporated in the question afforded a basis sufficient to warrant permitting the witness to state his opinion as to the speed of the car just before it collided with the culvert posts. Such an opinion by the witness as to the definite speed of the car before the accident, based as it was on subsequent events, involved too many unknown elements to admit of any degree of certainty. Manifestly the damage to the posts and to the front end of the plaintiff's car of itself afforded no sufficient basis for determining the number of miles per hour it was traveling at the time of impact. The very real possibility, if not probability, that the collision with the posts caused increased pressure of the driver's foot upon the accelerator, with consequent automatic increase of the speed of the car, suggests but one unknown element. Under the circumstances, the further facts concerning the course taken and the distance covered by the car after it struck the posts are of slight materiality.

It is, of course, true that it is not essential that a hypothetical question include all of the material facts which have been testified to. Goodrich Oil-Burner Mfg. Co. v. Cooke, 126 Conn. 551, 554, 12 A.2d 833; Jackson v. Waller, 126 Conn. 294, 306, 10 A.2d 763. To render the question admissible, however, the facts assumed there must be sufficient to justify a definite and intelligent opinion. Hall v. Sara, 112 Conn. 291, 297, 152 A....