63 A.2d 151 | Conn. | 1948
This is a negligence action. Plaintiff's decedent, Edmund Joanis, died as a result of injuries received in a collision with the automobiles driven by the defendants and the plaintiff had a verdict. The verdict was set aside by the trial court and the plaintiff appealed from this ruling and assigned errors based on the finding. The dispute between the parties is almost if not wholly concerned with the position of the cars on the road at the time of the impact.
The jury could reasonably have found the following facts: Main Street in Glastonbury connects Glastonbury and East Hartford and runs north and south. At the point of collision it is constructed of two ten-foot slabs of concrete with a six-foot shoulder on the west and a five-foot shoulder on the east. The road at this point is substantially straight and level. It was dry.
On December 23, 1941, about 3:45 p.m., Edmund Joanis was operating a Chevrolet automobile northerly on this road. At the same time the defendant Natale was driving his Buick car southerly along the same highway. The defendant Engstrom was also driving his Pontiac southerly, following the Natale car at a distance of two or three car lengths. The cars driven by Joanis and Natale sideswiped each other, and marks of the contact were evident on the rear left fenders of both cars. As a result of this contact the Natale car came to rest west of the traveled portion of the highway. The lighter Joanis car was turned to its left and it and the Engstrom car met head on. The latter came to rest west of the highway and the former in approximately the center of the west lane, headed south. All of the cars were thus west of the center line of the highway. There were tire marks in the west lane but no marks or other evidence of a collision in the east lane. Engstrom, Natale and Dubicki, a passenger in *250 the latter's car, testified that the cars driven by the defendants were to the west of the center line at the time of the impact and that the Joanis car was to its left or west of the center line of the highway. The testimony of the only other eyewitness who took the stand, a passenger in a car behind Joanis, was less definite but to the same general effect.
The crash between the Engstrom and Joanis cars was severe. Mrs. Engstrom, who was riding with her husband, was killed, and Joanis was taken to the Hartford Hospital in critical condition. The hospital record in evidence shows that his most serious injury was a compound basal skull fracture with contusion and edema of the brain stem. He was conscious on admission to the hospital on December 23 but lapsed into a deep coma from which he emerged gradually. He vomited blood repeatedly. On December 27 he asked if he had been in an accident and wanted to know how sick he was. On December 30 he was fairly alert, but at his best he had periods of unconsciousness and complained of severe headaches. On January 2 he asked how many days he had been in the hospital. His condition gradually deteriorated and he died on January 5. The woman who was Joanis' wife at the time of the accident, but who has remarried, and her mother testified that when they visited Joanis in the hospital he talked with them and told them that at the time of the accident his car was on his own right-hand side of the road and that two cars were coming toward him on his side of the road. He said that the first car hit him in the rear and that he ran into the second car head on. This statement appears three times in the record in substantially the same form.
The basic question on the motion is whether the statement of Joanis was sufficient to justify the verdict in view of the testimony of all of the surviving witnesses *251
to the contrary, and particularly in view of the absence of any physical evidence of the collision in the east lane. We are reviewing the action of the trial court in setting aside the verdict to determine whether its discretion was abused rather than the verdict itself. Conn. App. Proc. 114; Keyes v. Churchward,
The legal and factual effect of the statement attributed to Joanis must be examined with care, since the plaintiff's case stands or falls with it. It was admitted under General Statutes, 5608, as a declaration of a deceased person relevant to the matter in issue in an action by his representative. Such evidence was inadmissible at common law but the change made by statute has been approved by eminent authority. 5 Wigmore, Evidence (3d Ed.) 1576; 12 B. U. L. Rev. 396, 412; Morgan, Law of Evidence, p. 37 et seq., p. 89 et seq. The statute is discussed in Mulcahy v. Mulcahy,
The plaintiff is relying on the statement and she cannot complain if she is held to the words spoken and the circumstances under which the statement was made. It was claimed to have been made by a person who was so badly injured that he died within a few days and who after the crash was unconscious most of the time and in his lucid interval was still suffering severely from the effects of his injury. The only witnesses who testified to the statement were the woman who was Joanis' wife at the time of the accident and her mother. Under Cum. Sup. 1939, 1305e, and General Statutes, 5156, 4980, the former and her two minor children would be the recipients of the amount recovered after certain expenses were paid. These witnesses were far from disinterested. It is unnecessary to repeat the statement. It is of no assistance in determining where the accident occurred unless it is interpreted to mean that it occurred on the east or Joanis' right-hand lane.
In Sommers v. Adelman,
All of the other assignments of error in the appeal revolve around the admission of evidence of tire marks on the highway. These assignments are not pursued in the plaintiff's brief and are not considered. Gillette v. Schroeder,
There is no error.
In this opinion MALTBIE, C.J., BROWN and DICKENSON, Js., concurred; ELLS, J., dissented.