154 A. 144 | Conn. | 1931
The accident in this case happened on May 15th, 1927, prior to the date when the "guest statute" took effect. The defendant was driving northerly on the Cheshire-Milldale road about ten o'clock on a dark and rainy evening in a closed car, and the plaintiff, who is defendant's wife, was riding in the middle of the rear seat, with a child seated on each side of her. The defendant was proceeding up a grade in a lane of northbound traffic with several cars in front and two cars behind, and while driving at a *32 dangerous and reckless rate of speed, overtook a car, driving in the same direction, and passed it. While passing this car, he negligently applied his foot brakes, which caused his automobile to skid on the wet road across trolley tracks located east of the road, on private property of the Connecticut Company. The automobile came to a stop, with the rear half between the two rails, and an embankment immediately in front of it. A trolley car was proceeding southerly down grade at this time, and the motorman first saw the automobile of defendant when the latter was in the line of automobiles about two hundred feet away. When the automobile skidded eastward, and came to a stop on the trolley tracks, the trolley car was about thirty feet away. The motorman immediately applied his brakes and reversed with such force as to cause sparks to fly up around the wheels, but the car struck the automobile and injured the plaintiff. The plaintiff was not injured when the automobile skidded onto the tracks. The plaintiff first saw the trolley car coming when it was less than thirty feet away, and did not issue a warning to her husband; it was too late to give any useful warning to her husband. When she first saw the trolley car coming, the automobile had but a moment before skidded violently, and had come to a sudden stop on the tracks, and she was greatly frightened and excited. Any warning which she then could have given would have confused her husband instead of helping him, for he was in the same frightened and excited condition, and could not have backed his car off the tracks in time to avoid being hit.
The foregoing facts were found by the trial court and unless the defendant is entitled to a correction of the finding, the judgment of the court in favor of the plaintiff cannot be successfully attacked. The appeal *33 of the defendant is based upon a twofold claim; first, that certain facts have been found without evidence; and second, that certain facts should be added to the finding as admitted and undisputed, and if so added, would destroy any logical basis for the conclusion, essential to support the judgment, that the plaintiff was free from contributory negligence.
As to the first contention of the defendant, the findings sought to be eliminated are supported by evidence or are logical and reasonable deductions from facts in evidence, and no change therein, of material consequence, can be made.
The second contention is based upon the proposition that the plaintiff, having testified as a witness in the case, is bound by her own testimony as given; that the court was under a legal duty to find the facts in accordance with that testimony, and had no right to consider the evidence of other witnesses, and, if it believed their testimony, to find the facts in accordance therewith.
To make clear the situation, we refer to the evidence of the plaintiff. It appears that the plaintiff testified through an interpreter, and on direct examination was asked how long the automobile rested on the trolley tracks before it was struck by the trolley car, to which she answered, "I don't know exactly how many minutes, but it was enough, it was enough for a time standing there." She was then asked to explain in her own words exactly what happened, after the car her husband was driving came to rest across the trolley tracks, to which she answered, "We stopped across the tracks; then I look at my left and the right. . . . And after that I looked to the back and I told my husband `Now take care; be careful, and you may back the car'. . . . And after that I looked again and I saw a light from the left side and I saw that a car is *34 coming on the track. I didn't holler right away that the car is coming because I didn't want to scare him. I thought that she will not strike us, that she will stop. And she was high speeding and when she came she was making a very noise and I thought she stopped and she struck and maybe she struck in the wheel and bend me on that side, and I lean on the car and caught my both children and I said `Thank God, that we are alive.' For a time she was standing and after that — and she struck very hard after that; and I felt that it is hit very hard on my head and I fell down. Who took me out from the automobile I don't know, and after that two men took me to the automobile." On cross-examination she was asked how far away the trolley car was when she first saw the light, to which she answered, "I don't know," and afterward said, "When I saw her she was far away."
Other witnesses testified, including the motorman of the trolley car, who stated that he was coming down grade and first saw the Kanopka car about two hundred feet away; that when first seen by him, it was in a line of cars proceeding up the hill; that when the trolley car was within about thirty feet of the automobile, the latter started to skid off the road, and skidded in front of the trolley car; and that just as the automobile stopped, the trolley car struck it.
The claim of the defendant is that on her own testimony the plaintiff was guilty of contributory negligence; that, in the exercise of reasonable care, she had time and opportunity to get out of the automobile into a place of safety, after she saw the light of the trolley car, and before the collision and that the trial court had no right to find from the testimony of the other witnesses that the plaintiff had opportunity neither to give any useful warning nor to get out of the automobile in time to avoid injury. The defendant *35 states this contention in his brief as follows: "When a party testifies to positive and definite facts, which if true, would defeat his right to recover, and such statements are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony and that he cannot successfully complain if he is non-suited or if the court directs a verdict against him. In other words, a party must stand or fall by his own testimony."
In Massachusetts, since the opinion of Rugg, C. J., in Sullivan v. Boston Elevated Ry. Co.,
Examination of the authorities makes it clear, however, that even in jurisdictions where this principle is recognized, its application is narrow. Thus, in Massachusetts, in Whiteacre v. Boston Elevated Ry. Co., *36
In 5 Wigmore on Evidence (2d Ed.) § 2588, the author states: "An express waiver, made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it. This is what is commonly termed a solemn — i. e. ceremonial or formal — or judicial admission, or stipulation. It is, in truth, a substitute for evidence, in that it does away with the need for evidence. The judicial admission is sharply marked off from the ordinary quasi-admission — which indeed does not deserve to bear the same name. The latter is merely an item of evidence, available against the party on the same theory on which a self-contradiction is available against a witness. . . . It is enough to note that, as to the effect, the latter is not conclusive; while as to its form, it may be either implied or express, and need not be either written or made in open court." And in § 2597, the same author observes: "The doctrine of judicial admissions has a large future before it, if judges will but use it adequately. In the first place, the judge should apply it to all informal, as well as formal, admissions by *39 counsel during trial. In the next place, the judge should freely call upon counsel to state whether a fact is in good faith disputed, i. e. should require admissions to be made, when it seems probable that a fact is not actually disputed. By this method, the presentation of evidence will be confined to those matters of fact alone which the parties do dispute."
The practice in this state conforms to the views expressed by Professor Wigmore. A judicial admission may be made by a party as well as by his counsel. If a party, as a witness, unequivocally concedes a fact, such concession for the purposes of the trial, has the force of a judicial admission, and a party is bound thereby unless the court, in its reasonable discretion, allows the concession to be later withdrawn, explained, or modified, if it appears to have been made by improvidence or mistake. State v. Marx,
In the instant case, the court has found that the plaintiff was greatly excited and confused at the time of the accident. She was struck on the head and rendered unconscious by the impact. She testified at the trial through an interpreter. It is obvious from her testimony that her powers of accurate description were as limited as her knowledge of English. In eliciting *40
her testimony, there was not the strictest observance of the technical rules of evidence, "but this was inevitable in view of the limited understanding" of the witness. Carrano v. Hutt,
There is no error.
In this opinion the other judges concurred.