Szela v. Johnson Motor Lines, Inc.

• Decision Date: 02 December 1958
• Citation: Szela v. Johnson Motor Lines, Inc., 146 A.2d 910, 145 Conn. 714 (Conn. 1958)
• Court: Connecticut Supreme Court
• Parties: Eunice SZELA, Administratrix (Estate of Walter Szela), v. JOHNSON MOTOR LINES, Inc., et al. Supreme Court of Errors of Connecticut

Page 910

146 A.2d 910

145 Conn. 714

Eunice SZELA, Administratrix (Estate of Walter Szela), v.JOHNSON MOTOR LINES, Inc., et al.

Supreme Court of Errors of Connecticut.

Dec. 2, 1958.

Joseph I. Sachs, New Haven, with whom were Kalman A. Sachs, New Haven, and, on the brief, Harry L. Edlin, Arthur S. Sachs and Robert N. Giaimo, New Haven, for appellants(defendants).

Francis J. Moran, New Haven, with whom were Louis A. Perras, Jr., New Bedford, Mass., and John E. McNerney, New Haven, for appellee(plaintiff).

Before DALY, C. J., BALDWIN, KING and MURPHY, JJ., and COVELLO, Superior Court Judge.

BALDWIN, Associate Justice.

The plaintiff brought this action to recover damages for the death of her decedent, Walter Szela, allegedly caused by the negligence of the defendantFlay Jackson in operating a tractor-trailer truck in the course of his employment for the named defendant.The plaintiff had a verdict.The defendants, their motion for a directed verdict having been denied, moved for judgment notwithstanding the verdict and, in the alternative, that the verdict be set aside.Practice Book, §§ 233, 234.The court denied their motion, judgment was entered upon the verdict, and the defendants have appealed.Their assignment of errors raises questions of law concerning the court's ruling on their motions and concerning the finding, the charge, and rulings on the admission of evidence offered by the defendants.

Some of the parties' claims of proof are not in serious dispute.Szela was fatally injured in an accident which involved the tractor-trailer truck driven by him and the truck of the defendants.The accident occurred in the early morning hours of August 23, 1954, at a railroad underpass on the Boston Post Road in Madison in this state.The weather was clear, the roadway was dry, and the traffic was light.Szela's vehicle was empty.The one operated by Jackson carried 27,000 pounds of cotton goods.Szela approached the underpass, proceeding west, while Jackson was proceeding east.Their respective vehicles came together a foot or two south of the middle line of the two-lane concrete highway.The vehicles came to rest on the southerly portion of the highway, partly on and partly off the eastbound lane, forty-six feet eight inches from the point of impact.After the accident, there were marks caused by a dual-tired wheel of a type used on the defendants' trailer which started in the westbound lane two feet north of the middle of the highway and twenty feet west of the underpass.These marks extended northward in an arc to within three feet of the northerly edge of the concrete pavement, where they turned southward, crossed the middle line of the roadway, passed through some debris at the point of impact and continued to within ten or fifteen feet of the left rear wheel of the defendants' vehicle.As Jackson approached the underpass, he was driving at the rate of forty miles an hour.

The parties were sharply at issue as to who caused the accident.The defendants claimed that Jackson was not negligent and that the collision occurred because Szela, driving a truck more than twelve feet six inches in height without a permit, in violation of General Statutes, § 2501, negligently attempted to drive his vehicle under the railroad bridge, which was too low to admit it, and that the front of his trailer struck the bridge, causing the trailer to 'jackknife' to the left and turn over directly in the path of the defendants' vehicle.The plaintiff claimed that Jackson, approaching the underpass on a slight downgrade at forty miles an hour, was driving in the northerly or westbound lane.Szela, she argues, confronted with the truck, coming toward him on its wrong side of the road, pulled to his left sharply to avoid a head-on collision and thereby caused his trailer to jackknife, so that its front corner tilted upwards and struck the bridge and the trailer turned over.Variable factors entering into the measurement of the height of the underpass at the point where the Szela trailer struck the bridge and the height of the front end of the trailer made it impossible to fix the exact height of either as an indisputable fact.SeeNelson v. August, 145 Conn. 347, 349, 142 A.2d 726.Therefore, the jury were not required to accept the defendants' claim as to Jackson's lack of negligence or their further claim that Szela's conduct was negligent and was, consequently, the sole cause of the accident or a contributing cause.On the other hand, the jury could have inferred from the tire marks that the defendants' truck was approaching the underpass on the wrong side of the road and at too fast a speed in view of the highway signs west of the underpass which bore the legends 'Railroad Underpass,''12 Feet 3 Inches Clearance,' and 'Slow Down.'Fallo v. New York, N. H. & H. R. Co., 123 Conn. 81, 84, 192 A. 712;Esserman v. Madden, 123 Conn. 386, 388, 195 A. 739;Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473.Upon all the evidence, disputed factual issues were presented to the jury revolving about subordinate facts which could be accepted or rejected by them, and from which reasonable and logical conclusions on the issues of negligence and contributory negligence could be drawn either way.Gennallo v. Mazzacane, 144 Conn. 686, 688, 137 A.2d 534.The court did not err in denying the motion for judgment notwithstanding the verdict or to set aside the verdict, so far as the motion pertained to the issue of liability.

The defendants also claim that the verdict of $75,000 should have been set aside as excessive.We have had occasion recently to examine the elements which enter into the assessment of damages under our wrongful death statute.Cum.Sup.1955, § 3230d(now Public Acts 1957, No. 532);Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918.We said (144 Conn. at page 676, 136 A.2d at page 927): '[O]ur rule gives no mathematical formula which the trier can apply.This, however, is a shortcoming inherent in the problem.'When it does not affirmatively appear that the jury were influenced by partiality, prejudice or mistake of law or fact, as by some circumstance which could improperly influence their deliberations or by a disregard of proper instructions or by an erroneous ruling of law, the question is whether the amount awarded is so large or so small as to offend the sense of justice and to compel a conclusion that the jury were moved by considerations not properly in the case.Gorczyca v. New York, N. H. & H. R. Co., 141 Conn. 701, 703, 109 A.2d 589;McKirdy v. Cascio, 142 Conn. 80, 86, 111 A.2d 555;Fairbanks v. State, 143 Conn. 653, 661, 124 A.2d 893.The jury could have found that Szela was thirty-one years old when he died.He was in good health and had never been previously injured.He was married and his widow and three children survive.His marriage was happy, and he enjoyed the company of his family.He was a man of good habits and had been steadily employed as a truck driver.His wages had averaged $83 a week during the year prior to the date of the accident.His life expectancy was 41.58 years.Under the rule stated, we cannot say that the amount is so large that it offends the sense of justice.

Before we consider the errors claimed in the charge and the rulings on evidence, we shall first pass upon the errors assigned in the finding.In a case tried to the jury, the trial court's action upon a motion to set aside the verdict or for judgment notwithstanding the verdict is tested by the evidence.New Britain Trust Co. v. New York, N. H. & H. R. Co., 145 Conn. 390, 391, 143 A.2d 438;Maltbie, Conn.App.Proc., p. 227.A finding in a jury case is not a statement of facts found proven.It is a narrative of facts which the respective parties claim there was proof to establish.Maltbie, Conn.App.Proc., § 145.When, as in the case at bar, the finding clearly presents the claims of proof, supported by evidence, necessary to consider the errors assigned in the charge and the rulings on evidence no corrections are necessary.Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 543, 116 A.2d 167;Salvatore v. Hayden, 144 Conn. 437, 439, 133 A.2d 622;McCarthy v. Maxon, 134 Conn. 170, 173, 55 A.2d 912;Maltbie, Conn.App.Proc., p. 199.The trial court committed no error with respect to the finding.

We turn now to the errors claimed in the charge.The defendants complain of the failure of the court to grant certain of their requests concerning the application of the rule of proximate cause.They assert that Jackson's negligence, if any, including his speed, was a condition, as distinguished from a cause, of the accident and that the court should have instructed the jury specifically concerning this distinction.They rely upon Kinderavich v. Palmer, 127 Conn. 85, 15 A.2d 83, andMahoney v. Beatman, 110 Conn. 184, 147 A. 762, 66 A.L.R. 1121.In the latter case, we laid down (110 Conn. at page 195, 147 A. at page 766) the 'substantial factor' rule which the court correctly charged to the jury in the instant case.In the Kinderavichcase, supra, we said (127 Conn. at page 95, 15 A.2d at page 88): 'Properly understood, to say that conduct is a condition rather than a cause of an accident means no more than that it is a remote and not a proximate cause, 'a remote circumstance which merely gave rise to the occasion for the injury."The court stated the rule of proximate cause correctly, reviewed the claims of the parties as to the negligence of the defendants and the contributory negligence of Szela, and instructed the jury to apply the rule to the evidence upon which these...