Stitham v. Ware.

• Decision Date: 30 June 1948
• Citation: 134 Conn. 681,60 A.2d 658
• Court: Connecticut Supreme Court
• Parties: STITHAM v. LE WARE.

134 Conn. 681

60 A.2d 658

STITHAM

v.LE WARE.

Supreme Court of Errors of Connecticut.

June 30, 1948.

Appeal from Superior Court, Fairfield County; Comley, Judge.

Action by Florence Stitham against Charles Le Ware for personal injuries and property damage sustained in automobile collision allegedly caused by negligence of defendant. Verdict and judgment for plaintiff, and defendant appeals.

No error.

James J. A. Daly, of Bridgeport (Joseph G. Shapiro, of Bridgeport, on the brief), for appellant (defendant).

Irwin E. Friedman, and Arthur Levy, Jr., both of Bridgeport (Samuel E. Friedman, of Bridgeport, on the brief), for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

This negligence action involved a collision between two automobiles and resulted in a plaintiff's verdict. The defendant has appealed from the refusal to set it aside and from the judgment.

The collision occurred at the intersection of a public highway in Newtown and a private driveway leading from the plaintiff's home, which is located easterly of the street. The paved road was substantially twenty-eight feet wide and had no shoulder along its easterly edge, but there was a gutter five or six inches in width at the junction of the driveway and the street. The defendant states in his brief that his claim of error as to the court's refusal to set the verdict aside rests upon a ‘crucial factual dispute * * * whether the plaintiff's sedan was stopped or in motion at the moment of impact.’ The issue is narrow, and only a brief recital of evidence is necessary.

The defendant testified that he was driving northerly on the highway at a speed of about thirty to thirty-five miles per hour, on his own right-hand side of the road, and that the plaintiff's car suddenly backed out in front of him and caused the collision. He did not see the car until the moment of impact and said that he could not claim that the plaintiff's car was in motion. The plaintiff testified that she came out of the house, entered her car, started the motor, released the brakes, turned on the lights and allowed the car to roll down the driveway.

She said: ‘I didn't shift the gears because on our driveway there is a slope and you can roll back as far as the gutter. Then you can put it in reverse and back out.’ She further testified that the car came to rest with its rear wheels in the gutter, the overhang extending about three feet into the paved highway, that she heard a car coming some distance away, looked in that direction and waited a few seconds for it to pass, and that while her car was in that position the defendant's automobile struck it.

The defendant concedes that under ordinary circumstances the jury would have been fully entitled to resolve the factual question in the plaintiff's favor. He contends, however, that her ‘courtroom testimony’ was incredible because it was contradicted by ‘indisputable physical facts' and her own prior inconsistent statements. The indisputable physical fact relied upon is the position in which the plaintiff's car was found after the collision. A police officer testified that it was thirty-five to fifty feet from the driveway and was facing south, straddling the easterly edge of the road. The impact was severe. The forces set in motion by such collision are difficult to evaluate. It is by no means incredible that the defendant's car, traveling at thrity-five miles per hour, might hook into a car occupying the position testified to by the plaintiff, drag it thirty-five feet and turn it around. The collision could well have left the plaintiff's car in the position occupied by it after the accident even though it was standing still when it was struck, and therefore Mlynar v. A. H. Merriman & Sons, Inc., 114 Conn. 647, 650, 159 A. 658, relied on by the defendant, is not in point.

The defendant relies, as destroying the credibility of the plaintiff's testimony in court, upon certain statements made by her out of court, claimed to be inconsistent with her statements on the witness stand, and upon a plea of guilty to a criminal information charging that she failed to give the defendant the right of way. When a witness is a party to the action, his extrajudicial statement may be more than a contradiction. It may be treated as an admission. Hill v. Small, 129 Conn. 604, 605, 30 A.2d 387. However, the probative force of such statements must depend on the circumstances of each case. They may have little, if any, weight, or, in connection with other evidence, they may amount to convincing proof. State v. Willis, 71 Conn. 293, 306, 41 A. 820. The plaintiff's testimony at the trial and her prior statements, so far as they were inconsistent with it, were to be considered by the jury together with all the evidence presented, and such weight should be given to the...