Sullivan v. Nesbit

• Decision Date: 03 June 1922
• Citation: Sullivan v. Nesbit, 97 Conn. 474, 117 A. 502 (Conn. 1922)
• Court: Connecticut Supreme Court
• Parties: SULLIVAN v. NESBIT.

117 A. 502

97 Conn. 474

SULLIVAN v. NESBIT.

Supreme Court of Errors of Connecticut.

June 3, 1922

Appeal from Superior Court, New Haven County; L. P. Waldo Marvin Judge.

Action by John J. Sullivan, administrator, against Robert H. Nesbit for damages for injuries resulting in death alleged to have been caused by the negligence of the defendant's servant. Verdict and judgment for the defendant, and appeal by the plaintiff. Error, and new trial ordered.

The complaint alleged, and the plaintiff's evidence tended to prove, that on July 2, 1920, a circus parade was about to pass through College street in New Haven; that both sides of the street were lined with automobiles and with spectators assembled to view the parade; that many of the spectators were passing across the street and stepping into the street to look for its approach, and that under these conditions the defendant's automobile was being driven in a northerly direction along the right-hand side of College street and just ahead of the parade; that the plaintiff's intestate was standing in the crowd when the cry was raised that the parade was coming, and in the exercise of reasonable care looked out a little in advance of the others to see if it were approaching; that the defendant's car was then being driven at an unreasonable and dangerous rate of speed under the circumstances; that the defendant's chauffeur negligently failed to give any warning of its approach; that he failed to keep a reasonable lookout; that at and before the accident he was negligently looking backward and conversing with a passenger in the body of the car; and that he negligently failed to have the car under such control that he could avoid striking the plaintiff's intestate after he saw, or ought to have seen, him.

The defendant, denying all allegations of negligence, claimed also that the plaintiff's decedent stepped out suddenly from the crowd and walked directly into the right front fender of the car, without making any effort to see it and without giving the chauffeur any opportunity to avoid him. The jury found for the defendant, and the plaintiff appeals for alleged errors in the charge and in one ruling on evidence.

Charles S. Hamilton, of New Haven, for appellant.

William B. Ely, of New Haven, for appellee.

BEACH J.

Taking, first, the ruling on evidence: The defendant's witness Alice E. Williams had testified on her direct examination as to the conditions at and before the collision. On cross-examination an effort was made to discredit her testimony as to the speed of the defendant's car, the sounding of a horn, the turning of the chauffeur's head to speak to a passenger in the rear of the car, and the time when the brakes were applied, by reference to alleged inconsistent statements made by the witness at the coroner's inquest. On the redirect she was asked whether she remembered testifying before the coroner that she saw the decedent just before he was struck " and saw him as he stepped right out in front of the car." The question was objected to, admitted, and, after exception taken, the witness answered, " Yes." We are of opinion that the ruling of the court was erroneous. The right of a witness to explain away an apparent inconsistency in a former statement by showing the whole of the former statement is undoubted. Wigmore on Evidence, § § 2414, 2415; Barnum v. Barnum, 9 Conn. 242, 247; Clark v. Smith, 10 Conn. 1, 5, 25 Am.Dec. 47; Bristol v. Warner, 19 Conn. 7, 19. The question in every case is whether the explanatory statement does or does not relate to the same subject-matter. If not, it is evidently not admissible on the ground above stated. Here the claimed inconsistent statements brought out on cross-examination related in each instance to some specific act or omission connected with the alleged negligent management of the defendant's car just before the decedent was struck. The additional statement called for on the redirect had nothing to do with the management of the defendant's car. ...