Stressman v. Vitiello

• Decision Date: 16 February 1932
• Citation: 158 A. 879,114 Conn. 370
• Parties: STRESSMAN v. VITIELLO et al.
• Court: Connecticut Supreme Court

158 A. 879

114 Conn. 370

STRESSMAN v. VITIELLO et al.

Supreme Court of Errors of Connecticut.

February 16, 1932

Appeal from Superior Court, Fairfield County; John Rutus Booth Judge.

Actions by Carl C. Stressman, by Roger Stressman, and by Susie C Stressman, against Anthony Vitiello and another, to recover damages for injuries claimed to have been received in an automobile accident because of the negligence of the defendants, brought to the Superior Court, and tried to the jury, verdicts for the plaintiffs in each case against the defendant Lucy M. Davenport and for the defendant Vitiello and appeal by the defendant Davenport.

No error.

William D. Shew, of Hartford, for appellant.

Clarence O. Lister and George N. Foster, both of Bridgeport, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

AVERY J.

These three actions were tried together to the jury, and verdicts returned in favor of the plaintiffs. The defendant assigns as error the refusal of the trial court to set aside the verdicts, also certain instructions of the court, and certain rulings on evidence.

At the trial, it was conceded that on October 13, 1929, at about 7:45 p. m., all three of the plaintiffs were passengers in a Dodge automobile owned and operated by Clark L. Hartley, which was then being operated in a westerly direction along the Boston Post Road in the town of Branford. The surface of the road consisted of a cement strip about twenty feet wide with shoulders of travel on either side. The weather was clear, the roadway was dry, it was dark, and all of the cars involved in the accident carried lights. The Hartley car was immediately preceded by a Durant, traveling in the same direction, owned and operated by the defendant Anthony Vitiello. At the same time, a Cadillac, owned by the defendant Lucy M. Davenport, was being operated in an easterly direction by Carl L. Johnson, her agent. When the Davenport and Vitiello cars, thus traveling in opposite directions, reached a point in the road a short distance east of a cement bridge located near a power house, they came into collision. Immediately thereafter, the Davenport car collided with that of Hartley. As a result of the second collision, the plaintiffs received injuries. At the point of the collision, there is a slight curve in the road, and the Vitiello and Hartley cars, traveling west, were on the outside of the arc, the Davenport car being on the inside.

There was testimony from which the jury might have found that the Davenport car was travelling at an excessive rate of speed, and crossed over the center line of the road to its left and struck the Vitiello car; and that the latter, immediately preceding the collision and at the time thereof, was on its own right-hand side of the center of the highway. It is the claim of the defendant that this testimony is incredible, the defendant's claim being founded upon the evidence of a police officer who arrived at the scene shortly after the collision and investigated the situation of the cars and the marks on the road. After stating that when he arrived he found the Hartley car upon its own right-hand side of the road and the Davenport car on the same side a short distance from it, he stated that he observed marks leading to the latter. The mark commenced about one foot to the right of the center of the road and ran across the center, leading directly to the left front wheel of the Davenport car. It is the claim of the defendant that the commencement of this mark, being one foot to the right of the center line of the highway, shows that the defendant's car was on its own right-hand side at the time of the collision with that of Vitiello; and that its course afterwards across the center of the road and into collision with the Hartley car was caused by the negligence of Vitiello in driving to his own left beyond the center of the road thereby colliding with the Cadillac. It is to be observed in regard to this claim that the jury were not bound to believe the testimony of the officer as to the location of the mark on the highway; but, even if they did believe it, his testimony is not necessarily inconsistent with that of those witnesses who stated that the Vitiello car was at all times upon its own right-hand side of the road, and that the Davenport vehicle crossed the center line of the highway and struck it. It is not plain, from the evidence, whether the brakes were applied upon the Davenport car with sufficient force to lock the wheels and cause the mark on the surface of the highway, or, if so, at what instant of time relative to the collision. Both the testimony and the mark on the road indicate that the course of the Davenport car was diagonally across the center line of the highway and onto the left side thereof. At what point in this course the collision occurred is not established by the tire mark alone. It may have been at the point where the tire mark commenced or at some other point in the course of the mark across the center line of the highway. The question was thus one plainly for the jury to determine upon all the evidence in the cause, and neither the trial judge nor this court would be justified in interfering with its decision on the conflicting evidence.

The defendant assigns as error the action of the trial court in stating to the jury in the course of its instructions, as among the conceded facts in the case, that the collision between the Davenport and Vitiello cars occurred when they had reached a point in the road " about 100 feet east" of the bridge located near the power house. The claim of the defendant is that by so stating the point of...