*1 Rocky DeCarlo Nazzareno Giambartolomei al. et Sons, Inc., Wynne Daly, O’Sullivan, Js. Inglis, J., Baldwin, C. Argued May 1 decided June *2 Oburchay, George N. with was Richard F. whom al.). appellants (named defendant Foster, for the et David, Reilly, M. with on the Jr., whom, brief, Reilly, appellant (defendant David M. for administrator). Nicholas Barzetti, Donnelly, Joseph Donnelly,
John with whomwas V. appellee (plaintiff).
for the brought by plaintiff This action was
Daly, J. against Rocky DeCarlo and hereinafter Sons, Inc., corporation; agent, called the McKeithen; Russell and Nicholas administrator of the estate Barzetti, Barzetti Charles and hereinafter called the admin- plaintiff sought recovery per- istrator. injuries alleged
sonal to have been sustained as the negligence result of the of Charles Barzetti and the defendant McKeithen. The returned verdict plaintiff. judgment for the Prom the rendered there- appealed. on all the defendants have The administra- tor claims refusing that the court erred requested by denying as Mm and in his motion to set aside the assign verdict. The other defendants error the court’s denial of their motion to set aside By stipulation appeal the verdict. this is determina- tive the issues in another case which the same questions presented. of law are prove offered evidence to the follow-
ing January facts: On p.m., at about 2:15 passenger he was in the front seat of an automobile by owned Charles driving Barzetti, who was it in a northerly direction on public Wilson Avenue, operating
highway in Norwalk. McKeithen southerly corporation’s large dump direc- ain truck collision, of the At scene tion on Avenue. Wilson eighteen asphalt feet an surface Wilson Avenue has A short feet wide. wide and shoulders each two high- place accident, distance south of the of the way grade railroad is crossed at two sets straight highway is tracks. of the tracks, South North than 500 feet. for a of more distance Shortly before it curves to the tracks, northeast. produced freezing an *3 rain and sleet had collision highway. icy slippery This on and condition the by snow, made worse condition was hazardous road falling As accident. which at the time of the approached be- it was scene, the car Barzetti the highway ing easterly the on of driven side the twenty speed per it con- a and hour, at of miles speed became collision tinued at that until the pro- approached, was The as it truck, imminent. plaintiff ceeding speed. saw rate of The at fast away. feet the truck and 200 when it was between 100 highway completing It the and was in the of middle the side of curve when it skidded toward the east upon railroad the road. As Barzetti car came the the The it toward of road. tracks, skidded the middle you pull all “Charlie, shouted to Barzetti, they going can, hit.” two vehicles collided The great short north of force. distance the tracks with stop The truck to a on the side of the came west highway eighteen of tracks, feet north with right wheels on shoulder of the road and its left paved portion. on wheels The Barzetti car was spun around the force of collision and came stop facing parallel ato south and with the truck. impact seriously damaged The of force the entire part of the front Barzetti ear and the left front being part were Both vehicles of the DeCarlo truck. speeds in' view
driven at which were excessive icy slippery highway, and width curve, plain- falling snow. condition of and the road injuries col- tiff received serious result in- lision. serious Charles Barzetti also received juries subsequently died. in the collision corporation evidence offered and McKeithen prove equipped “snow tread” with that the truck, southerly speed proceeding of about at a tires, twenty-five per came around miles that as it hour; eighteen car curve McKeithen saw the Barzetti away, proceeding or nineteen feet at about the same speed as had the that of the that Barzetti truck; right; wheels of his car that the Bar- turned to his zetti car was in a that it over to its skid; crossed left and collided with the which had been truck, brought stop to a on west road; side of the that the truck all was at on its own times side the road. prove
The administrator offered evidence to *4 Charles operating Barzetti at all was, times, his car on his own side of the road; that it was not traveling fast; that McKeithen had driven the truck on the inside of the curve and it was on the east highway; side of the that Barzetti was faced with emergency solely an by created McKeithen and that the completely Barzetti car came to rest on its own right-hand side of the road.
The administrator contends that the trial court charging, erred not requested, jury that if the should find that “Barzetti crossed over the center involuntarily line the road and without . fault . . crossing
such would not be in violation of the rules of the road.” It is clear that the administrator, using “involuntarily,” the words “crossed” and referring of travel
“crossing,” the course skidding the by or car occasioned either the by solely emergency created been claimed to have charge, if that stated in its McKeithen. The court, any negligent the skidding act on was not due to car part operator, that fact then the negligence; necessarily skidded not establish would reasonably prudent operator if acted as person not to he was circumstances, would under the merely negligent car skidded be held because operator damage, not if and caused and that up negligent operation to the of his in the vehicle then could not be held moment the car he skidded, responsible had car unless his conduct after reasonably up not to that of skidded did measure prudent person circumstances. After under the counsel for administrator had retired, withregardto only exception “[T]he I take is stated: charging emergency. re- . . .” The court then not on that an emer- called the and instructed them suddenly, gency without is a situation which arises reasonably warning be foreseen and which could not reasonably prudent an and that if driver, emergency is but does not result from created, negligent operation up time of its driver’s operator responsible then the cannot be held creation, his conduct after the the resultant accident unless emergency up arises fails to measure to that of reasonably prudent person under circumstances. adopt language court did not in which the request charge was couched. error Nevertheless, may predicated upon not be the failure of the court language request *5 in the exact to of the when subject fully accurately has been and in covered charge. Jacobs v. & 141 Co., 276, Conn. Swift performs duty A.2d 658. The court 280, 105 its when
473 jury a give are “to instructions calculated comprehension presented their clear of the issues upon the pleadings and determination under the guidance in the deter evidence, and suited to their 90 Goldstein, mination of those issues.” Radwick Saracyn Corpora 98 A. 701, 583; Conn. Doe v. 706, 138 82 The instructions tion, 69, Conn. A.2d 811. 75, given subject administrator’s re covered the of the quest adequate in and and correct, were prin applicable accord with familiar established ciples. corporation
The contend that McKeithen testimony physical and other witnesses as to the plain- facts demonstrates the untruthfulness testimony tiff’s the court erred therefore, that, denying their motion to set aside the verdict. testimony administrator claims since that, placed contradicted that of McKeithen and jury all of the on blame the latter and since against found the issues McKeithen and the cor- poration, against verdict should have not been him, the and that the administrator, court erred denying duty Ms motion it It set aside. is the ap- the trial court set the verdict if aside it is parent physical jury from the facts were swayed by improper Engstrom, motives. Joanis v. say, Conn. 63 A.2d 151. We cannot from physical
however, that, the evidence of apparent jury it is facts, that were influenced improperly. judges are the of the credibil- ity of witnesses, whether the contradiction is be- tween differing different witnesses or between state- ments made the same witness. Zullo v. Zullo, Conn. A.2d 712, 715, 216. The decide what weight justly belongs to the evidence. If the verdict they agreed to which have is a conclusion to which
474 intelligently acting fairly and men
twelve honest
be
cannot
final and
might
is
that verdict
come, then
155,
Corkey,
Taylor
150,
142 Conn.
v.
disturbed.
733,
730,
113 Conn.
Finnan,
v.
Porcello
925;
111 A.2d
jury
evi
to the
not confined
were
A. 863. The
156
any
by
plaintiff
witness.
or
one
offered
dence
always
closely
not
cases does
in
contested
The truth
partly
altogether upon'
It is often found
one side.
lie
partly
a
of
in that
and
of
in
evidence
Vergason,
434,
431,
95 Conn.
v.
defendant. Russell
favorable Savin 221; 104 A.2d Co., 150, 153, Amusement Conn. 533; 140 Conn. A.2d Turner, 702, 103 v. 701, Markee Corporation, v. Bob’s Coaster 133 Conn. Sanderson judg The concurrence of the 54 A.2d 677, 678, 270. judge jury who saw wit ments testimony powerful argu nesses heard is sustaining ment for the action of the trial court. We only to decide whether there was which are evidence reasonably could have from credited and they fairly have which could reached conclusion they analysis, did. In the last the defendants ask retry that this court the case on the evidence. We Taylor Corkey, v. do not do this. 142 Conn. 150, 155, denying 111 A.2d The court 925. did not err in defendants’ motions set aside the verdict. assignments
Certain the administrator’s correcting finding. error aimed at are “The finding, case of will trial, be corrected only reasonably necessary fairly present when it is a claimed error law made the court.” State Gargano, 103, v. 99 Conn. 121 A. 657; Cornwell Conn. Rosoff, A.2d 460, 78 544. Here no fairly necessary present reasonably correction is *7 any claimed error.
There is no error. opinion con- and Wynne, J., In C. J., this Inglis, curred. agree (dissenting part). that I in J. Baldwin,
there as to of the defendants was no either error aside on the the court’s refusal to set the verdict ground against refusal that it was evidence. respond
of the court to administra- to defendant request charge tor’s found that to that if the the Barzetti car crossed the middle line of road involuntarily crossing and without that would fault, not be in violation rules of road was, to the defendant administrator, harmful error. the driver of
McKeithen, the DeCarlo testified truck, that when he first saw the Barzetti car it was on own side of road but that it skidded across front of his truck and collided with it. It was in the light of this no claim, that Barzetti his doubt, filed request. charge The court did with refer- liability skidding ence to and conduct of driver emergency. confronted with an It then read required operator statute which of a vehicle meeting public highway another on a “seasonably to right give turn to the so as to half of the traveled portion highway” person of such to the so met. §
General Statutes
2489. When
is
evidence
offered
prove
a certain
important
set of facts
to the
decision
party
of the case and desires the court to
applicable
the law
to those facts, it is the
duty
party
request
appropriate charge.
an
duty
It is the
comply
the court to
in substance with
request. Tyburszec
v. Heatter, 141
183,
Conn.
187,
476 Express Railway 762; Piascik v. 29 A.2d
526, 529,
A. 919.
Agency, Inc.,
279,
119 Conn.
175
277,
in point
accurate
substantially
charge requested
223,
Karabanowski,
124 Conn.
Giancarlo
of law.
v.
700,
Martin v.
126 Conn.
Holway,
752;
A.
226,
640,
Bulik,
Conn.
Grantham
38;
A.2d
reference
with
given