Case Summary: Carlo Orsillo, P. P. A. v. Nicholas Russo (Supreme Court of Connecticut, Nov. 4, 1931)

Factual and Procedural Background

The plaintiff, a nineteen-year-old male, brought an action to recover damages for personal injuries allegedly caused by the defendant's negligence after being struck by the defendant's automobile on Congress Avenue in Waterbury. Congress Avenue is a paved, thirty-eight-foot-wide street with a single trolley track approximately in the center. The plaintiff was on the south sidewalk, saw a boy he knew on the opposite side, and began to cross. A trolley car was approaching from the west; the plaintiff waited in the gutter for it to pass, and as it passed he entered the street behind the trolley. He testified that the trolley obstructed his view toward the east and that after it passed he could not see anything approaching from the east, yet he proceeded and was struck by the defendant's automobile coming from the east.

At trial in the Superior Court in New Haven County before Judge Peasley, a jury returned a verdict for the plaintiff. The trial court, on the defendant's motion, set aside that verdict on the ground that, on the plaintiff's own evidence, his injury was the direct result of his gross negligence, that the jury could not reasonably have found otherwise, and that the jury's verdict was plainly influenced by sympathy. The plaintiff appealed. The Supreme Court of Connecticut concluded "No error."

Legal Issues Presented

Whether, on the plaintiff's own testimony and the other testimony in the case, the plaintiff's conduct constituted gross negligence such that the verdict for the plaintiff could properly be set aside as against the evidence.
Whether the trial court abused its legal discretion in setting aside the jury's verdict when the court found the verdict palpably against the evidence or influenced by sympathy.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91	The standard that a verdict may be set aside when it is "so palpably against the evidence as to indicate that the jury must have made some mistake in the application of legal principles, or were influenced by lack of knowledge or understanding."	The court invoked this standard to characterize the jury's verdict as palpably against the evidence and thus justify setting it aside.
Roma v. Thames River Specialties Co., 90 Conn. 18, 96 A. 169	The principle that the trial court's action in setting aside a verdict involves the exercise of legal discretion and is not to be disturbed unless the discretion has been abused.	Used as authority for deferring to the trial court's exercise of discretion in setting aside the verdict, giving great weight to the trial judge's opinion.
Robinson v. Backes, 91 Conn. 457, 99 A. 1057	Same general principle regarding the trial court's discretion in setting aside verdicts and appellate review of that discretion.	Cited to support the proposition that the trial court's discretionary action should not be disturbed absent clear abuse.
Schulte, Inc. v. Hewitt Grocery Co., 101 Conn. 750, 125 A. 365	Same general principle regarding deference to the trial court's discretion in setting aside jury verdicts.	Cited to reinforce the rule that great weight is due the trial judge's opinion when he sets aside a verdict.
Maroncelli v. Starkweather, 104 Conn. 419, 133 A. 209	Same general principle regarding appellate deference to the trial court's exercise of discretion when setting aside a verdict.	Relied on as supporting authority for affirming the trial court's discretionary decision absent abuse.

Court's Reasoning and Analysis

The court examined the testimony and found no substantial conflict as to the plaintiff's conduct immediately before the collision. The plaintiff repeatedly testified that, after waiting for the trolley to pass, the trolley obstructed his view to the east and that he could not see anything approaching from that direction, but he nevertheless proceeded behind the trolley and was struck. A witness for the plaintiff corroborated that the plaintiff started to cross after the trolley passed and was struck. The defendant and an occupant of his car testified that the plaintiff suddenly came out from the back of the trolley and ran directly in front of the automobile.

Based on this evidence, the court concluded the plaintiff's conduct could not reasonably be found to be that of an ordinarily prudent person and amounted to gross negligence, particularly given the plaintiff's age (nineteen years). The jury's verdict in favor of the plaintiff therefore indicated that the jury failed to apply the plaintiff's duty to exercise due care, and the verdict was characterized as palpably against the evidence or influenced by sympathy. Because a trial court has the duty to protect parties in such circumstances, the court found that setting aside the verdict was an appropriate exercise of legal discretion. The appellate court emphasized that such discretionary action will not be disturbed unless there is a clear abuse of discretion and that considerable weight is to be given to the trial judge's conclusion.

Holding and Implications

Holding: The Supreme Court of Connecticut affirmed the trial court's action in setting aside the jury's verdict and concluded "No error."

Implications: The direct effect is that the plaintiff's verdict was properly set aside by the trial court on the ground that the plaintiff's own gross negligence, as shown by his testimony and the other testimony, made the verdict for him untenable. The opinion does not announce a new rule of law beyond applying established principles regarding when a verdict may be set aside as against the evidence and the deference due to a trial court's discretionary decision; no broader legal implications beyond the case-specific outcome are discussed.

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CARLO ORSILLO, P. P. A., vs. NICHOLAS RUSSO.

Where the plaintiff, a nineteen year old boy, with his view obstructed by a passing trolley car, proceeded behind it directly in the path of an automobile approaching from a direction opposite to the trolley, and was struck, it was held that a verdict for him was properly set aside.

BANKS, J.

Congress Avenue in Waterbury is a paved street running east and west, thirty-eight feet in width, with a single trolley track approximately in the center of the street. The plaintiff was upon the sidewalk on the south side of the street when he saw a boy whom he knew on the other side of the street, and started to cross the street to meet him. A trolley car was approaching from the west, and the plaintiff waited in the gutter for it to pass and as it passed went out into the street and was struck, just after he had crossed the trolley tracks, by the defendant's automobile which was approaching from the east. The trial court set aside the plaintiff's verdict on the ground that, upon his own evidence, it clearly appeared that his injury was the direct result of his own gross negligence, that the jury could not reasonably have found otherwise, and that they were obviously moved by sympathy for the plaintiff in reaching a verdict in his favor.

The plaintiff testified that, as he stood on the sidewalk, he had looked to the east and saw nothing coming, that the trolley car was then approaching from the west, that he waited in the gutter for it to pass, that it then obstructed his view but he started across, and the next thing he remembered he was hit. Both upon direct and cross-examination he repeatedly testified that after the trolley car passed he couldn't see anything approaching from the east because the car was in the way and obstructed his view, and yet he kept on across the street and was struck. The boy across the street, one of the plaintiff's witnesses, testified that he saw the plaintiff starting to cross the street, that he slowed down to let the trolley car pass him, and then continued across and was struck. The defendant and another occupant of his car both testified that the plaintiff came out suddenly from the back of the trolley car and ran directly in front of the defendant's automobile. There was no substantial conflict in the evidence as to the conduct of the plaintiff, and it could not reasonably be found to be that of an ordinarily prudent person. He was nineteen years old and had reached an age of discretion, and yet, with his view obstructed by the passing trolley car, he proceeded behind it directly into the path of the defendant's automobile. The verdict shows that the jury did not hold the plaintiff to the performance of his duty to exercise due care, and is "so palpably against the evidence as to indicate that the jury must have made some mistake in the application of legal principles, or were influenced by lack of knowledge or understanding." State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91. In such a case it is the duty of the trial court to protect the parties by setting aside the verdict, and its action in so doing involves the exercise of a legal discretion and will not be disturbed unless it clearly appears that the discretion has been abused; and in passing on the question great weight should be given to his opinion and every presumption made in favor of its correctness. Roma v. Thames River Specialties Co., 90 Conn. 18, 96 A. 169; Robinson v. Backes, 91 Conn. 457, 99 A. 1057; Schulte, Inc. v. Hewitt Grocery Co., 101 Conn. 750, 125 A. 365; Maroncelli v. Starkweather, 104 Conn. 419, 133 A. 209.

ORSILLO v. RUSSO