Waldron v. Raccio

• Decision Date: 09 July 1974
• Citation: 353 A.2d 770,166 Conn. 608
• Court: Connecticut Supreme Court
• Parties: William WALDRON, Administrator (Estate of David F. Waldron) v. Howard M. PACCIO et al.

Page 770

353 A.2d 770

166 Conn. 608

William WALDRON, Administrator (Estate of David F. Waldron) v. Howard M. PACCIO et al.

Supreme Court of Connecticut.

July 9, 1974.

Robert L. Trowbridge, Glastonburg, for appellants (defendants).

Jeremy G. Zimmermann, New Haven, with whom, on the brief, was William J. Doyle, New Haven, for appellee (plaintiff).

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

BOGDANSKI, Associate Justice.

This action arose out of a collision between a motor vehicle and a pedestrian in the town of Hamden. The vehicle was owned by the defendant Howard Paving Company and was operated by its employee, the defendant Howard M. Raccio. The pedestrian, David F. Waldron, was killed instantly, and this wrongful death action was brought by the plaintiff, the administrator of his estate. The complaint charged the defendant Raccio with several specifications of negligence. Relevant to this appeal are the claims of negligence in driving at an unreasonable speed and in operating with an obstructed windshield. The jury returned a verdict of $75,000 for the plaintiff. The trial court refused to set aside the verdict, and rendered a judgment from which the defendants have appealed to this court.

The defendants have assigned error in the court's charge to the jury, in its rulings on evidence, and in its denial of their motion to set aside the verdict as excessive. Other assignments of error have not been briefed and are considered abandoned. Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 280 n. 1, 348 A.2d 618.

Claims of error addressed to the charge are tested by the claims of proof as they appear in the finding. Practice Book §§ 609, 635; Dinda v. Sirois, 166 Conn. 68, 69, 347 A.2d 75. The defendants' sole challenge to the charge is hthat the evidence was insufficient to justify submitting the issue of excessive speed to the jury.

The plaintiff offered evidence to prove and claims to have proved the foolowing facts pertinent to the issue of excessive speed: At approximately 11:20 p.m. on December 17, 1970, the decedent was crossing Dixwell Avenue in Hamden when he was struck and killed by the defendants' southbound vehicle. Dixwell Avenue is approximately sixty-one and one-half feet wide in the vicinity of the accident and has two travel lanes and a parking lane in each cdirection. The decedent was crossing near an intersection and was about three-quarters of the way across Dixwell Avenue when he was struck. The defendant Raccio saw him no more than two seconds before the collision, though the area was well lighted and the decedent was easily visible from fifty to sixty feet away. The windshield of the defendants' vehicle was streaked with and obscured by road dirt. Prior to the collision Raccio neither blew his horn nor applied his brakes. As a result of the impact the decedent, who weighed 145 to 150 pounds, was thrown thirty-two feet, four inches. Measured from the rear hub of the wheel, the defendants' vehicle left fifty-three feet, seven inches of skid marks. The vehicle sustained the following damage: a seven-inch crack in the passenger-side headlight cover, a pushed-in grill with a break in the body surrounding the grill just below the front bumper on the driver's side, the removal of several square inches of paint, and several scrape marks on the engine cover.

The defendants offered evidence to prove and claimed that they had proved the following facts: The decedent was dressed in dark clothing and Dixwell Avenue is a blacktop road. The defendant Raccio was traveling at approximately thirty miles per hour prior to the accident. The vehicle's headlights, brakes and tries were in good operating condition, and the windshileld was not obstructed. A car also going south passed the defendants' vehicle on the left and in the next instant Raccio saw the decedent run diagonally in front of and away from his vehicle. The decedent was struck immediately after the defendant Raccio saw him and applied his brakes. After impact and while the brakes were being applied, but before the vehicle came to a stop, the decedent was carried forward on the vehicle's hood.

From the foregoing claims of proof we conclude that there was sufficient evidence to justify the submission of the issue of unreasonable speed. '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. The posted speed limit (not in evidence in the present case) is indicative of the maximum reasonable speed under optimum conditions.' Toomey v. Danaher, 161 Conn. 204, 208, 286 A.2d 293, 296. But a rate of speed within the posted limit is not necessarily conclusive of the issue of reasonableness. Michaud v. Gagne, 155 Conn. 406, 412, 232 A.2d 326. Excessive speed may ordinarily be proved by circumstantial evidence, such as vehicular damage and distance traveled after the application of brakes, without expert testimony as to its significance. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (damage where one vehicle overtook and hit another); Petrillo v. Kolbay, 116 Conn. 389, 393-394, 165 A. 346 (distance traveled after the brakes were applied, where vehicle hit pedestrian).

In addition to testimony that the defendants' vehicle was traveling at about thirty miles per hour, there was other evidence from which the jury could have found unreasonable speed, including the damage to the defendants' vehicle, the skid marks, the distance the decedent was thrown, and the condition of the windshield. Expert opinion might have helped the jury to assess the significance of some of that evidence, but we cannot say that in its absence the jury lacked the competence to consider it.

The defendants rely on Toomey v. Danaher, supra, in arguing that, in the absence of expert testimony, there was insufficient evidence to submit the issue of unreasonable speed to the jury. In that case, a fiberglass vehicle driven on a high-speed limited access highway skidded 400 feet when its brakes were applied and then collided with a metal guardrail, sustaining heavy damage. The damage was the only evidence as to the speed of the vehicle. Under those special circumstances this court held that without expert testimony a jury could not reasonably have concluded from the damage to the vehicle that its speed had been so high as to be unreasonable.

The present case, however, is different from Toomey. Here, the collision was between a vehicle and a pedestrian, the accident did not occur on a high-speed roadway, and there was evidence as to the vehicle's speed and the reasonableness of that speed in the circumstances even apart from the damage it sustained. Cf. Terminal Taxi co. v. Flynn, supra; Petrillo v. Kolbay, supra. 'Under those circumstances it seems clear that the jury reasonably could have concluded, from common experience, that the speed of the . . . (defendants') vehicle was excessive.' Toomey v. Danaher, supra, 161 Conn. 210, 286 A.2d 297.

The defendants also challenge the admission of testimony of Police Officer John J. Quinn as to the location on Dixwell Avenue of the collision, claiming that his testimony was not supported by subordinate facts. Officer Quinn testified that he had ten years' experience investigating accidents and that he had investigated this accident, arriving on the scene a few minutes after it had occurred. He further testified that he had received special training in motor vehicle accident investigation, including the determination of the point of impact. Over the defendants' objection he testified that he had determined the approximate point of impact in this case by locating debris, consisting of dirt and tar, which had fallen from the underside of the defendants' vehicle.

Expert opinion testimony as to the point of impact in a motor vehicle accident is proper provided the witness has been qualified and an adequate foundation for his testimony has been laid. See annot., 'Admissibility of opinion evidence as to point of impact or collision in motor vehicle accident case,' 66 A.L.R.2d 1048; cf. Finch v. Weiner,109 Conn. 616, 620-621, 145 A. 31. The trial judge has a broad discretion to determine the qualification of an expert. Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277; Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370. '(I)f any reasonable qualifications can be established, the objection goes to the weight rather than to the admissibility of the evidence.' Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600, 602. 'Some facts must be shown as the foundation of . . . an (expert's) opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence. It is largely a matter of judicial discretion whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion of value.' Barber v. Manchester, 72 Conn. 675, 684, 45 A. 1014, 1017; Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73. In light of Quinn's testimony as to his training, experience and investigation, the trial court did not abuse its discretion in admitting his opinion as to the point of impact.

The defendants also assign error in the ruling of the court admitting in evidence four photographs of the windshield offered to prove that it did not provide an unobstructed view. Quinn testified that two of the photographs were taken from outside the vehicle while it was still at the scene of the accident, and that the other two were taken shortly thereafter from inside the vehicle while it was in a garage. After he testified that the photographs fairly represented the condition of the windshield as he saw it at the accident scene, they were admitted into evidence. A...