145 A. 504 | Conn. | 1929
The plaintiff was a passenger for hire in a bus operated by the defendant in the city of Bridgeport and was injured when the bus collided with a standing truck. The defendant moved the court to set aside the verdict and upon the denial of the motion appealed to this court assigning three grounds of error: (a) in refusing to set the verdict aside, (b) that the verdict was excessive, and (c) in admitting the statement of the defendant's bus driver as part of the res gestoe. The reasons assigned in the motion to set the verdict aside are, that it was contrary to law, and contrary to and against the weight of the evidence.
It does not appear from the record that any claim was made to the trial court that the verdict was excessive or that question was ever passed upon by that court. In any event, we cannot say from the evidence, all of which is before us, that the verdict was so unreasonable that it was the duty of the trial court to set it aside. If the jury believed the evidence given in behalf of the plaintiff, as they were privileged to do, the verdict does not impress us as excessive. Moreover, fixing the amount of damages is peculiarly the province of the jury and being accepted by the judge, who also heard all the evidence, this court will not overrule such action save for compelling reasons, and these do not appear in this case. The negligence of the defendant's driver is not contested in argument or brief, and the apparently conceded fact that the bus ran into a standing truck goes far in itself to establish this feature of the case. It is argued that there was contributory negligence on the part of the plaintiff, but *708 we are satisfied that this claim was not maintainable, according the plaintiff the most favorable construction of the evidence, as we are required to do.
The third assignment of error is the admission of the testimony of the truck driver that the bus driver told him the reason for the collision was the failure of the brakes on the bus. The evidence was admitted over the objection of the defendant, on the ground that the statement of the bus driver was part of the res gestoe.
If after an occurrence of this sort had taken place, so it could not be considered otherwise than as a past occurrence, someone had asked the driver of the bus what caused it to run into the truck, his answer "no brakes," as it related to a past event, would not have been admissible as part of the res gestoe. McCarrick
v. Kealy,
The appellee, however, urges that under the circumstances of this case and the authority of Perry v.Haritos,
The finding in the present case does not fix the element of time with certainty. It does not show that the utterance "no brakes" was in response to any question put to him, but in both its form and substance rather suggests a spontaneous declaration which was against his own interest. The witness was asked how soon after the crash occurred he went over to the driver of the bus. He replied, "Why in three minutes, as fast as I could get out of my car." The next question was, "Well, it didn't take you three minutes to get over from your car?" To which he replied, "I know, but it was an interval because there was more than one car in the accident." He was then asked whether he "Got over simultaneously with the crash," and replied, "Yes, sir." If the interval of time had been in fact three minutes, the utterance would doubtless have been excluded and properly so. But the explanation made by the witness shows that his first estimate of the time was wrong and that it was less than three minutes. The acts of the witness were consecutive. He got out of his car as quickly as he could after the crash occurred, and went directly to the bus driver. The trial court apparently took this view of the incident and regarded the utterance of the bus driver as a spontaneous one made without opportunity for deliberation and reflection. We think the court was justified in this view and that the ruling was correct under the authority of Perry v. Haritos, supra.
A careful review of the evidence discloses ample and reasonable grounds for the conclusion reached by the jury.
There is no error.
In this opinion the other judges concurred.