Tarquinio v. Diglio

• Decision Date: 02 May 1978
• Citation: 175 Conn. 97,394 A.2d 198
• Court: Connecticut Supreme Court
• Parties: Angelo TARQUINIO v. Christopher DIGLIO, Administrator (ESTATE of Nicholas C. DIGLIO).

Page 198

394 A.2d 198

175 Conn. 97

Angelo TARQUINIO v. Christopher DIGLIO, Administrator (ESTATE of Nicholas C. DIGLIO).

Supreme Court of Connecticut.

Argued Jan. 12, 1978.

Decided May 2, 1978.

Angelo Tarquinio, pro se, appellant (plaintiff).

William F. Gallagher, New Haven, with whom were Robert F. Moran, New Haven, and, on the brief, Francis J. Moran, New Haven, for appellee (defendant).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

PER CURIAM.

The plaintiff, Angelo Tarquinio, brought an action against the defendant, Nicholas C. Diglio, ¹ to recover for damages sustained by Tarquinio when the vehicles operated by the two men collided at the intersection of Route 34 and Chestnut Ridge Road in Orange. Judgment was rendered on a jury verdict for the defendant and the plaintiff has appealed.

Three claims of error are asserted by the plaintiff: (1) the admission into evidence of certain photographs of the scene taken by Diglio and his brother five to six hours after the accident; (2) the admission of "hearsay" testimony by the defendant's wife; and (3) the court's action in cautioning members of the jury not to visit the scene of the accident while the trial was in progress.

At the trial, photographs of the scene taken more than five hours after the accident were admitted over the plaintiff's objection that the defendant had failed to establish a proper foundation for their introduction. Photographs taken by the police immediately after the accident had already been introduced into evidence. The defendant's photographs were offered to show the presence and location of skid marks on the highway after the accident.

"A photograph offered to prove the appearance of . . . (something) which cannot itself be inspected by the jury must first be proved accurate. The accuracy sufficient for its admission is a preliminary question of fact to be determined by the trial judge. Cunningham v. Fair Haven & Westville R. Co., 72 Conn. 244, 249, 43 A. 1047. 'Ordinarily . . . (a photograph) should be substantiated by testimony that it is a correct representation of the conditions it depicts, and in so far as it is properly so authenticated it becomes evidence of those conditions.' Cagianello v. Hartford, 135 Conn. 473, 475, 66 A.2d 83, 84." Waldron v. Raccio, 166 Conn. 608, 615, 353 A.2d 770, 774 (1974); see also annot., 9 A.L.R.2d 899; McCormick, Evidence (2d Ed.) § 214.

The mere presence of skid marks on a busy thoroughfare more than five hours after an accident is insufficient to create an inference that those marks were caused by the vehicles involved in the accident. Therefore, a photograph depicting such skid marks would be relevant to prove the appearance of the scene only if it could be demonstrated that those same marks were visible on the road immediately after the accident. Here, the photographs were authenticated by the deceased defendant's brother, Salvatore Diglio. Salvatore was able to verify that the photographs accurately depicted the condition of the road at approximately 3 o'clock in the afternoon, but he had no knowledge of what the road looked like at 9:45 a. m., immediately after the accident. Pursuant to General Statutes § 52-172, ² Salvatore was permitted to testify as to his brother's remarks at the time the pictures were taken. There was no testimony, however, that the deceased defendant ever said or observed that the appearance of the road at the time the photographs were taken was the same as it had been following the accident. Under these circumstances it was error for the court to overrule the...