Sears v. CurtisSears v. Curtis
- Reporters:
- , ,
- Before:
- King
A tractor-trailer truck,, while being operated by the plaintiff westerly on route 15 in East Hartford at about 1:30 a.m. on April 19, 1954, collided with the defendants’ tractor-trailer truck, which was parked facing west. To what extent the defendants’ vehicle was off the traveled portion of the highway and whether any lights were displayed which were visible to one approaching, as was the plaintiff, from the rear, were disputed matters. The jury brought in a verdict for the defendants,
The defendants called as a witness Joseph Pilkin, a state police officer, who was one of the first to arrive at the scene following the accident. He was asked, “Did you make any observation . . . with reference to the presence or absence of any lights on . . . [the defendants’] vehicle?” He answered, “I did.” He was then asked to tell about it. An objection was made on the ground that the witness had no knowledge of the lights at the time of the accident. The court allowed the question. The witness then said, “I did.” The plaintiff excepted. It is obvious that this wholly irresponsive answer was harmless, and its admission could not constitute reversible error. Thereafter, the witness was asked to tell what his observation was, and without objection he answered that he remembered that there were some lights on the vehicle but he did not know what color they were or where they were. Since the plaintiff not only took no exception but did not object to the question, no error can be predicated on the admission of the answer.
For the purpose of proving the location of the defendants’ vehicle on the highway at the time of the accident, the plaintiff called Clair 0. Dorn, a civil engineer. He was allowed to testify that about nine months after the accident he was able, by using
On the finding, the court did not abuse its discretion in deciding that the witness’ qualifications were inadequate to permit him to give the opinion called for in the question.
Wray
v.
Fairfield Amusement Co.,
126 Conn. 221, 224, 10 A.2d 600;
Coffin
v.
Laskau,
89 Conn. 325, 329, 94 A. 370;
State
v.
Main,
69 Conn. 123, 141, 37 A. 80. This is true even though the qualifications of an expert witness usually affect the weight of his testimony rather than his competency as a witness.
Sanderson
v.
Bob’s Coaster Corporation,
133 Conn. 677, 682, 54 A.2d 270;
Rogoff
v.
Southern New England Contractors Supply Co.,
129 Conn. 687, 691, 31 A.2d 29;
Wray
v.
Fairfield Amusement Co.,
supra; see
State
v.
Nelson,
139 Conn. 124, 128, 90 A.2d 157. Nor can we
The final claim of error is based on several portions of the charge. One portion was included in the plaintiff’s draft finding but was omitted from the finding. Error was assigned in this omission, and we add this paragraph of the charge to the finding. In these portions of the charge, in various ways, the jury were told to consider all the evidence, including written statements of witnesses which had been admitted in evidence as exhibits. In another portion of the charge, the court, after referring to the testimony of Joseph Baker, the plaintiff’s witness, instructed the jury that they should “consider his testimony upon the stand and ... as it is reflected in two statements which are here in evidence, one . . . given in 1955 and one . . . given in 1958.” At the close of the charge, the plaintiff excepted to the instruction that written statements given by witnesses were evidence, and particularly to the court’s application of this instruction to the two statements of the witness Baker. In taking the exception, counsel stated that the “statements were introduced not as evidence but rather ... to affect . . . credibility and . . . they themselves do not constitute evidence.” The court took no action as a result of this exception, although nowhere in the charge did it explain to the jury the difference between admissions of a party, which are admissible against him in proof of the matters stated therein, under the rule of eases such as
Johnson
v.
Rockaway Bus Corporation,
145 Conn. 204, 209, 140 A.2d 708, and
Perrelli
v.
Savas,
115 Conn. 42, 44, 160 A.
It is incumbent on an appellant to establish that an error was made and that it was material, that is, probably harmful.
Martin
v.
Board of Zoning Appeals,
145 Conn. 735, 737, 143 A.2d 450. Where, as here, the claim of error attacks the charge, the determination of the efficacy of the claim must depend upon the claims of proof as shown by the finding.
Lopes
v.
Connecticut Light & Power Co.,
145 Conn. 313, 315, 142 A.2d 135. The plaintiff’s claim as to the limited purpose for which these exhibits were received is without support in the finding. The finding discloses nothing as to the circumstances under which, or the purposes for which, the written statements of Baker, or of any other witness, were admitted in evidence.
Pischitto
v.
Waldron,
147 Conn. 171, 176, 158 A.2d 168. The finding does not indicate that at the time of their admission the court was asked to, or did, explain or limit their effect.
State
v.
Tryon,
145 Conn. 304, 309, 142 A.2d 54, and cases cited. The markings on the exhibits themselves indicate no limitation, and one of the two statements of Baker, in addition to the usual exhibit markings, bore the notation “(full exhibit).” As far as is disclosed by the finding, the statements were admitted as
There is no error.
In this opinion the other judges concurred.