Velardi v. Selwitz

• Decision Date: 02 January 1974
• Citation: 345 A.2d 527,165 Conn. 635
• Court: Connecticut Supreme Court
• Parties: Leslie VELARDI v. Fred SELWITZ et al.

Page 527

345 A.2d 527

165 Conn. 635

Leslie VELARDI v. Fred SELWITZ et al.

Supreme Court of Connecticut.

Jan. 2, 1974.

Peter C. Dorsey, New Haven, for appellant (named defendant).

William J. Doyle, New Haven, for appellants (defendant Lorraine Anderson and others).

Nathan A. Resnik, New Haven, for appellee (plaintiff).

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

LOISELLE, Associate Justice.

The plaintiff, Leslie Velardi, a minor, brought this action by her father to recover damages for injuries she had suffered when a motor vehicle in which she was a passenger, operated by the defendant Robert J. Rienai and owned by the defendant Lorraine Anderson, collided with a motor vehicle owned and operated by the defendant Fred Selwitz. The plaintiff alleged negligence on the part of both operatiors. The jury rendered a verdict for the plaintiff against all the defendants. The defendants moved to set aside the verdict and for a new trial. The motions were denied and judgment was rendered on the verdict. The defendants have appealed from the judgment.

The assignments of error addressed to the charge are dispositive of the appeal. The correctness of the charge is determined by the claims of proof of the parties. Practice Book § 635; Raia v. Tophius, 165 Conn. 231, 232, 332 A.2d 93; Busko v. DeFilippo, 162 Conn. 462, 464, 294 A.2d 510. At about 8 p.m. on August 12, 1966, the plaintiff was a passenger in a motor vehicle driven by Rienzi in an easterly direction on Chapel Street, New Haven. The posted speed limit was twenty-five miles per hour. Ellsworth Avenue runs north and south and intersects Chapel Street. A stop sign on the northwest corner of the intersection controls southbound traffic on Ellsworth Avenue. The defendant Selwitz was driving south on Ellsworth Avenue. The two motor vehicles collided in the area common to the eastbound lane of Chapel Street and the southbound lane of Ellsworth Avenue. At the time in question there was heavy, bumper-to-bumper traffic traveling in a westerly direction on Chapel Street in the vicinity of the intersection. These facts are undisputed by the parties and are sufficient to discuss the issues raised by the appeals.

Rienzi, the defendant whose speed the plaintiff alleged was negligence, assigned error in portions of the charge relating to speed. The primary purpose of the charge to the jury is to assist them in applying the law correctly to the facts which they find to be established. Vita v. McLaughlin, 158 Conn. 75, 77, 255 A.2d 848; Worden v. Francis, 153 Conn. 578, 579-580, 219 A.2d 442. The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. Bell, 153 Conn. 540, 544, 219 A.2d 218; Fasanelli v. Terzo, 150 Conn. 349, 357, 189 A.2d 500.

The court first gave the usual instructions concerning the common-law test to determine whether Rienzi's speed was reasonable under all of the circumstances. Thereafter the court discussed the effect of the posted speed limit on Chapel Street without reference to General Statutes § 14-219(b) ¹ and did mention that speed in excess of twenty-five miles per hour 'would be prima facie evidence that he was operating in violation of the statutes, because it was posted for 25 miles per hour.' The term 'prima facie' was discussed and the court then explained that the surrounding circumstances should be taken into consideration in determining whether Rienzi's speed was 'unreasonable in common law as I have indicated to you or because it violated the statute.' The court continued: 'In addition to what I have just given you, which may be referred to as common law negligence, there is also what may be referred to as statutory negligence, and the one that I just gave you with reference to speed is section 14-219 relating to that, and if you find there is a violation of such a statute, then, of course, it would be negligence per se.'

Later in the charge the court stated: 'In addition to the common law rule governing the conduct of the defendant, and the Legislature has a right to do so, (sic) lay down certain rules regarding the conduct of automobiles and reiterating the statute, the Legislature said that no person shall operate a vehicle on the public highway at a rate of speed which is greater than is reasonable and proper having regard to the width, etc. Now, the rate of speed may have been excessive because it was unreasonable under common law as I have stated to you, or it may be excessive in violation of the provisions of the statute. This requirement does not vary greatly from the common law as to the rules on excessive speed. The rule requires that in order that speed. shall be so excessive as to be negligent, it must be unreasonable in view of the considerations which I have mentioned regarding the width, the traffic, the use of the highway and the circumstances then and there existing.'

Although the charge did not contain contradictory instructions as such, it was misleading and inexact, and could only have confused the jury in their consideration of the statute. State v. Bell, supra, 153 Conn. 543, 219 A.2d 218; Bailey v. Bruneau's Truck Service, Inc., 149 Conn. 46, 57, 175 A.2d 372. The court failed to include all of the elements which § 14-219(a) ² of the General Statutes specifies as the necessary factors for determining whether the statutory reasonablensee standard has been violated. In a later portion of the charge the court did state all factors but did not give them in conjunction with the statue. Furthermore, while the charge relating to the prima facie evidence portion of § 14-219 (b) was initially correct, the jury were later told that a violation of the statute would be negligence per se.

Although it is true that a violation of the reasonable speed requirement of § 14-219(a) would be negligence per se, the court's charge could equally be interpreted as referring to a violation of the posted speed limit. The failure of the court to distinguish between the two parts of the statute left the jury with the natural inference that a violation of the posted speed limit would be negligence per se. In reviewing the assignment of error directed to the court's charge, it is apparent that the court did not adequately instruct the jury on the principles of law involved in the allegation which charged excessivde speed against Rienzi and Anderson. A new trial is required as to the liability of these defendants.

One of the allegations of negligence against the defendant Selwitz was that of failing to stop at the Ellsworth .avenue stop sign before entering the intersection. When the court first charged on § 14-301(c) ³ relating to stop signs, it correctly instructed the jury. The court explained the duty of an operator to stop at a stop sign and to yield the right-of-way to vehicles which are not required to stop and are within the intersection or approaching so closely as to constitute an immediate hazard, and that thereafter other vehicles should yield the right-of-way to the operator as he enters the intersection. In a later dicussion of requests to chage submitted by the parties, however, the court instructed the jury that Selwitz was required to yield the right-of-way to vehicles approaching from his right and it then gave the jury the usual instructions concerning § 14-245. ⁴ The right-of-way rule of § 14-245 is inapplicable to an intersection controlled by a stop sign and it was error to charge on that statute. Finkle v. Marino,151 Conn. 221, 225, 196 A.2d 437. In this instance the error cannot be deemed to be harmless as the instruction was specific, it was the last instruction in the discussion of liability and it was contradictory. State v. Bell, 153 Conn. 540, 543, 219 A.2d 218.

The record does not reveal who requested the court to charge on § 14-245. In the exception to this charge taken by the defendant Selwitz, however, it is clearly stated that he did not make the request. Generally, an erroneous charge induced by one party's request to charge does not entitle that party to a retrial. State v. Cobbs, 164 Conn. --, 324 A.2d 234; see Guglielmo v. Klausner Supply co., 158 Conn. 308, 317, 259 A.2d 608. Here, if the error was induced by a request to charge, it was not a request filed by Selwitz, and thus is not a bar to his assignment of error or to granting him a new trial.

The plaintiff claims that the effect of alleging common-law negligence and statutory negligence was to plead two distinct...