Thomas v. Commerford

• Decision Date: 04 March 1975
• Citation: 357 A.2d 476,168 Conn. 64
• Court: Connecticut Supreme Court
• Parties: Clarence W. THOMAS v. Francis COMMERFORD et al. TOWN OF BRANFORD v. Clarence W. THOMAS.

Page 476

357 A.2d 476

168 Conn. 64

Clarence W. THOMAS v. Francis COMMERFORD et al.

TOWN OF BRANFORD v. Clarence W. THOMAS.

Supreme Court of Connecticut.

March 4, 1975.

Paul J. Falsey, New Haven, for appellants-appellees (defendants) in the first case and appellant-appellee (plaintiff) in the second case.

David M. Reilly, Jr., New Haven, for appellee-appellant (plaintiff) in the first case and appellee-appellant (defendant) in the second case.

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

BOGDANSKI, Associate Justice.

These two cases, arising out of the same automobile accident, were consolidated for trial and have been combined on appeal by stipulation of the parties. In the first case the plaintiff, Clarence Thomas, sought to recover damages for personal injuries and property loss allegedly caused by the negligence of the town of Branford and its employee, Francis Commerford. In the second case, the town of Branford sought to recover property damage allegedly caused by Thomas's negligence. The jury returned verdicts in favor of Thomas in both cases. The town of Branford moved to set aside the verdicts and for judgment in both cases in accordance with its motions for a directed verdict. Those motions were denied. From the denial of those motions the town of Branford and Commerford, hereinafter the defendants, have appealed to the court, and, from the judgment rendered, Thomas has filed a cross appeal.

The defendants have assigned error in the court's finding of facts, in the charge to the jury, in the taking of judicial notice and in the denial of their motions. In the cross appeal, error has been assigned in the court's refusal to grant motions for nonsuit and default, in the finding of facts, and in the court's conclusions.

The offers of proof disclose the following: On March 30, 1967, Thomas was operating his motor vehicle southerly on Cedar Street, a public highway in Branford. His intention was to make a left turn into the driveway of his home located on the easterly side of Cedar Street. When about twenty-five feet north of his driveway he stopped his vehicle at the westerly curb. While so stopped he saw the Commerford vehicle about 350 feet to the south, headed northerly. Commerford testified that his speed was approximately twenty-five miles per hour. As Thomas proceeded to turn his vehicle left towards the driveway, the two vehicles collided in the northbound lane. The Commerford vehicle left twenty-eight feet of tire marks on the pavement.

At the close of evidence, Thomas requested that the court take judicial notice of a pamphlet published by the state of Connecticut entitled 'Driver's Manual,' dated May, 1972. A chart contained therein, incorporating a three-quarter second reaction time for the 'average' driver, purported to show the breaking and total stopping distance of motor vehicles at various speeds 'under most favorable road conditions.' Over the defendants' objection, the court took judicial notice of the chart and charged the jury that the 'normal' total stopping distance of a vehicle traveling twenty miles per hour is forty-seven feet and that at thirty miles per hour, the stopping distance is eighty-eight feet. The court went on to say that the jury could consider those facts in connection with Commerford's testimony that he saw Thomas's vehicle ninety to one hundred feet away and that he was traveling twenty-five miles per hour.

'The true concept of what is judicially known is that it is something which is already in the court's possession or, at any rate, is so accessible that it is unnecessary and therefore time wasting to require evidence of it. State v. Main, 69 Conn. 123, 136, 37 A. 80. Judicial notice, therefore, in its appropriate filed, meets the objective of establishing facts to which the offer of evidence would normally be directed. De Luca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611. The underlying theory is that proof by evidence concerning a proposition may be dispensed with where the court is justified . . . in declaring the truth of the proposition without requiring evidence from the party. 9 Wigmore, Evidence (3d Ed.) § 2565. . . . Matters which may properly be judicially noticed in this way are those which come to the knowledge of men generally in the course of the ordinary experience of life or those matters which are . . . capable of ready and unquestionable demonstration. Roden v. Connecticut Co., 113 Conn. 408, 415, 155 A. 721.' State v. Tomanelli, 153 Conn. 365, 368-69, 216 A.2d 625, 628-629.

The chart in question purports to show the 'average' stopping distance for an automobile under 'favorable' road conditions. Some jurisdictions have extended judicial notice to such charts; see, e.g., Autrey v. Swisher, 155 F.2d 18, 22 (5th Cir.); Winekoff v. Pospisil, 384 Mich. 260, 269, 181 N.W.2d 897; Blahnik v. Dax, 22 Wis.2d 67, 72, 125 N.W.2d 364; while others have refused; see, e.g., Schutz v. Breeback, 228 Md. 179, 183, 178 A.2d 889; McCoy v. Gilbert, 110 Ohio App. 453, 460-64, 169 N.E.2d 624; Smith v. Hardy, 228 S.C. 112, 123, 88 S.E.2d 865. See, generally, note,84 A.L.R.2d 979; ¹ 12 Blashfield, Automobile Law & Practice (3d Ed.) § 436.5, p. 135 n. 30. We believe that the better rule is to exclude charts of total braking distances for automobiles from the realm of that which is judicially known. There are many factors which affect the stopping distance of a motor vehicle including the reaction time among individual drivers, the weight of the vehicle, the type and condition of brakes, the force with which the brakes are applied, and the type and condition of the roadway surface. See McDonald v. Mulvihill, 84 N.J.Super. 382, 388, 202 A.2d 213. Those factors are all interrelated, and each is a variable in any given situation. Charts showing stopping distances are based on certain assumptions as to those variable factors, which cannot be said to be generally known in the 'ordinary experience of life or . . . capable of ready and unquestionable demonstration.' State v. Tomanelli, supra, 153 Conn. 369, 216 A.2d 629.

The better practice is to have opinion testimony of an expert as to the speed of a motor vehicle based on skid marks and other physical facts proven on the trial of each particular case. See note, 29 A.L.R.3d 248, 252 § 2(b); see also Waldron v. Raccio, Conn. (36 Conn.L.J., No. 2, pp. 6, 7); Toomey v. Danaher, 161 Conn. 204, 210, 286 A.2d 293. When a witness testified, his testimony can be challenged and the trier can pass on his credibility and determine what weight should be given to the evidence. This is not true when a fact is establish by judicial notice. The suggestion in State v. Tomanelli, supra, 153 Conn. 369, 216 A.2d 625, that judicial notice is not conclusive of the fact noticed since contrary testimony is permitted, cannot apply here where the request for judicial notice came after the close of evidence, and the taking of judicial notice by the court was first indicated in the charge.

In Muse v. Page, 125 Conn. 219, 4 A.2d 329, this court refused to take judicial notice of the shortest distance within which a vehicle could be stopped. It is true that in Muse, this court did say, at page 225, 4 A.2d at page 332, in quoting from McCombs v. Ellsberry, 337 Mo. 491, 498, 85 S.W.2d 135, 138: 'While courts may not take judicial notice of the precise distance a given automobile may be stopped under given conditions, judicial notice has been taken of the limits within which a stop could be effected.' In the present case, however, the court took judicial notice of the average and not the range of stopping distances. The court advised the jury of the average stopping distances of motor vehicles as matters judicially noticed, and established as facts the stopping distance of Commerford's vehicle at two speeds. It, therefore, placed the average stopping distances before the jury as a test for measuring Commerford's speed, his testimony and his credibility. In so doing, the trial court erred.

Since both cases must be remanded for a new trial, a discussion of the second issue raised by the defendants is appropriate. In its charge to the jury the trial court read § 14-242 of the General Statutes and instructed them that if they should find that Thomas did not signal his turn into the private driveway for at least one hundred feet prior to making the turn, then they must find that he was in violation of that statute, and that the violation would constitute negligence per se. After exception was taken by Thomas, the court recalled...