Toomey v. Danaher

• Decision Date: 18 May 1971
• Court: Connecticut Supreme Court
• Parties: Louis TOOMEY v. Robert C. DANAHER, Administrator (ESTATE of Kathryn TOOMEY).

Page 293

286 A.2d 293

161 Conn. 204

Louis TOOMEY v. Robert C. DANAHER, Administrator (ESTATE of Kathryn TOOMEY).

Supreme Court of Connecticut.

May 18, 1971.

John F. Scully, Hartford, with whom, on the brief, was David T. Ryan, Hartford, for appellant (defendant).

Joseph P. Kenny, Hartford, for appellee (plaintiff).

Before HOUSE, THIM, RYAN, SHAPIRO PIRO and LOISELLE, ^* JJ.

THIM, Associate Justice.

This action was brought by the plaintiff Louis Toomey to recover damages from the estate of his deceased wife as compensation for injuries, expenses and losses sustained by him as a result of a one-car accident in the early hours of the morning of October 28, 1967. At the trial, this action and an action by the defendant against the plaintiff for the deceased wife's injuries and death which arose out of the same accident, were tried together. The jury returned a plaintiff's verdict in this case. The defendant administrator then moved to set aside the verdict and for a judgment notwithstanding the verdict. The motion was denied and judgment was rendered on the verdict. From the judgment the defendant has appealed, assigning as error: The denial of his motions to set the verdict aside and for judgment notwithstanding the verdict; certain portions of the charge to the jury; the admission into evidence of a medical examiner's report; and the refusal of the trial judge to correct the finding.

The basic facts of this case are not in dispute. On the morning of October 28, 1967, a white Corvette owned by Louis Toomey was traveling east in the eastbound lane of route 15, just east of the Charter Oak Bridge toll station. At a point approximately seven-tenths of a mile from the toll station, the brakes of the car were applied, making skid marks on the road. The skid began in the right-hand lane. The car then veered to the left, began to spin, and struck the center guardrail, about 400 feet easterly from the start of the skid. As a result of the impact, the car split in two. Both the plaintiff and his wife were thrown out of the rear of the front section of the car. The rear section of the car remained in the area of the impact. The front section of the car continued on and finally came to rest against the guardrail on the right side of the highway some 122 feet easterly of the rear section. Both victims were found alive and taken to the hospital. Mrs. Toomey died as a result of her injuries, never having regained consciousness. The plaintiff has substantially recovered from his injuries, but has a retrograde amnesia as a result of which he is unable to recall anything about the accident. ¹

On the trial of this case there were two basic areas of contest. The first was the question: Who was driving the car, Toomey or his wife. The second was whether there was any negligence. The jury found that Mrs. Toomey was the driver and that there was negligence. For reasons which will become apparent, we will consider only the second question: Has any negligence been demonstrated by a preponderance of the evidence?

There were no eyewitnesses to the accident. It involved but one car with two occupants. One of those occupants is dead. The other cannot recall the accident. Negligence, therefore, if any, can only be demonstrated by circumstantial evidence. In Connecticut, res ipsa loquitur does not apply to situations of this type; Chasse v. Albert, 147 Conn. 680, 684, 166 A.2d 148; since common experience shows that causes of motor vehicle accidents other than driver negligence are not infrequent. See Briganti v. Connecticut Co., 119 Conn. 316, 320, 175 A. 679. Thus, the plaintiff must prove negligence on the part of the defendant, and, of course, that negligence must be the proximate cause of the injuries. Further, the evidence of negligence must be sufficiently clear so that the jury could so find without resorting to speculation or conjecture. State v. Ferraro, 160 Conn. 42, 46, 273 A.2d 694; Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750; Bruce v. McElhannon, 141 Conn. 44, 48, 103 A.2d 335.

In considering whether there was any evidence to support a verdict we consider the evidence as printed in the appendices to the briefs. Lepri v. Branford, 152 Conn. 210, 211, 205 A.2d 486; Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606. The evidence therein shows the course of the car as has already been related, as well as the testimony of a toll collector who testified that a car which fit the description of the Toomey vehicle had passed through his toll lane at about the time of the accident, and that its operation was not unusual and that it proceeded normally. Thus, the only evidence on which the jury could base its conclusion of negligence was the fact that the car skidded for about 400 feet, struck a metal guardrail, split in half behind the seat, the body of the rear section disintegrated, and the front half of the car continued on for a short distance. The plaintiff contends that this evidence demonstrates that the vehicle was traveling at an excessive rate of speed.

For speed to be 'excessive' in the negligence sense, that speed must be unreasonable. An unreasonable rate of speed would be a speed which was not safe considering the type of road, the amount of traffic thereon, the condition of the road, and the weather conditions. It would also include the physical condition of the driver and the general condition of the vehicle. ² The posted speed limit is indicative of the maximum reasonable speed under optimum conditions. Exceeding the posted speed limit, if the proximate cause of the accident, would be actionable negligence. We have no evidence of the physical condition of the driver other than a normal appearance of the driver of the car observed at the toll booth. Likewise, we have no evidence of any apparent mechanical defect. We do have evidence that the road was a divided limited access highway of two lanes in each direction, and with a right-hand shoulder; that the road was fairly straight at the point of the accident; that the road was well-lighted; and that traffic at the time was almost nonexistent. We have no evidence of the posted speed limit on route 15 at the point of the accident, but since it was a limited access highway a much higher rate of speed was permissible than that which might be deemed reasonable on another type of highway.

We now must determine whether the jury reasonably could have concluded that a 400-foot skid, and the resultant damage, could not have happened at a relatively high reasonable rate of speed, for only a speed in excess of such a high reasonable speed could be unreasonable, thus excessive, and thus negligent. In Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881, 884, we stated: 'The jury could have found from the nature and the extent of the damage to the vehicles that Flynn was operating his car at an excessive speed.' In the Terminal Taxi case the accident involved two automobiles and took place on a one-way, nonresidential city street. The Flynn vehicle struck the left rear of the taxicab with its right front and '(a)lthough the taxicab had been moving at the time of impact, the force of the collision was severe enough to completely demolish both the right front part of the Flynn car from the front center to the door on the right side and the left rear part of the taxicab.' Id., 315, 240 A.2d 883. The driver of the taxicab witnessed the accident and testified in court. Thus, in the Terminal Taxi case the jury could have concluded that extensive damage to two moving vehicles on a city street, near an intersection, demonstrated excessive speed. It must also be recalled that when two vehicles, moving in the same direction collide, the collision speed is the difference between their two speeds. Under those circumstances it seems clear that the jury reasonably could have concluded, from common experience, that the speed of the Flynn vehicle was excessive. In this case, however, the situation is quite different. We are considering a much higher reasonable speed, a collision with a stationary object which is designed to withstand, or stop, a rapidly moving vehicle, and a car body constructed of fiberglass. 'The rule requiring expert testimony applies only when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.' Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192, 195; Jaffe v. State Department of Health, 135 Conn. 339, 350, 64 A.2d 330. We believe that the extent of damage to this type of vehicle, at a high rate of speed, upon collision with a metal guardrail, does require expert testimony before a jury reasonably may conclude that the vehicle was traveling in excess of that speed. On the evidence, therefore, the jury could not have concluded that excessive speed was the cause of this unfortunate accident, or if the jury did find excessive speed, it was unwarranted by the evidence presented.

It is certainly clear that there is no evidence pointing to any other cause of the accident. The brakes were suddenly applied and the skid began. As we have pointed out many times, there could be numerous causes for such a loss of control. See Chasse v. Albert, 147 Conn. 680,...