TOWER v. CAMP

Although, upon motion duly made in accordance with § 5791 of the General Statutes, a party is of right entitled to a special finding of the facts upon which the judgment of the trial court is based, and although this right may be enforced by appropriate procedure, nevertheless the denial of such a motion is not assignable error upon an appeal taken in the regular form, since the ordinary appeal finding, which is necessary even though the special finding be made, contains all the matter essential for a review by this court. The plaintiffs claimed, and the trial court found, that the collision between the defendants' truck and the automobile in which the plaintiffs were passengers, was due to the failure of the defendants' operator to keep to his right of the center of the highway as the cars approached from opposite directions, in violation of § 1 of Chapter 246 of the Public Acts of 1923. Held that this conclusion was warranted by the subordinate facts; and that there was no merit to the claim that the trial court had held the defendants' driver to any higher standard of conduct than that of exercising due care in yielding one half of the highway to the approaching car. Due care is always to be measured by the surrounding circumstances and, in certain situations, may require a high degree of caution, as in the present case, where, at nighttime, the defendants' wrecking car by means of a crane attachment, was towing a heavy truck, the steering gear of which was broken so that it deviated to some extent from the path of the wrecker. No allegation that the negligence of the defendants' driver concurred with that of the operator of the car in which the plaintiffs were riding, was necessary to support a finding to that effect; nor was it of any avail to the defendants that the operator of the plaintiffs' car likewise failed to keep to his right of the center of the highway.

KEELER, J.

Certain of the reasons of appeal are general and are all in effect that the defendants were not negligent and that judgment should have been the other way. The ninth reason of appeal, concerned with a statement of fact in the memorandum of decision, is not before us, unless we comply with defendants' request and correct the finding by placing it therein. We see no reason for so doing. The facts upon which the court rested its decision are fully set forth in the finding and cover fully the factual matter recited in the memorandum. Regarding the tenth assignment of error, which is directed to the alleged refusal of the court to prepare and file as part of the record the facts on which its judgment was founded, pursuant to the provisions of General Statutes, § 5791, there is nothing in the record to show that the written motion was denied, but the finding evidently was not made. The case was decided October 31st, 1924, and the motion was made November 4th, and was seasonable. Morris v. Winchester Repeating Arms Co., 73 Conn. 680, 681, 49 A. 180. Had the finding been made it would have become part of the record and ordinarily the subject of review, but never having been made, its absence does not so diminish the record as to make it defective on appeal, nor can the want of action of the court upon defendants' motion constitute an error affecting the judgment rendered by the court, and reviewable as an error upon the appeal record. Had the motion been granted the finding would, if properly made, have contained only ultimate and not subordinate facts; and to get the latter upon record the ordinary appeal finding would have been necessary. The defendants had a right to this finding, and could have enforced its making by proper procedure, but not by error assigned in the present appeal.

It is quite evident that upon the finding as made defendants are at a serious disadvantage, unless the same can properly be corrected in several particulars, and before proceeding further we will consider the proposed corrections. The errors assigned as to corrections are twenty-six in number, and it is perhaps needless to remark, that if granted would require substantially an adoption of the defendants' proposed finding, resulting in finding facts entirely subversive of the final conclusion reached by the court. None of these corrections, under our rules and practice, should be made.

The defendants claim that the facts found do not sustain any allegation of negligence contained in the complaint. One of these allegations, contained in paragraph seven of the complaint, is that defendants failed to keep to the right far enough to avoid hitting the Goodrich car, a sufficient allegation to claim violation of the law of the road as contained in Public Acts of 1923, Chapter 246, § 1. In support of this allegation the court finds that the collision took place substantially in the center of the road, that at this time defendants' cars were headed diagonally across the highway with the rear end of the towed truck projecting over the center of the road, and that the Goodrich car after passing the wrecker struck the projecting end of the truck projecting over the center line of the highway. This, in connection with the setting of the scene as described in other paragraphs of the finding, warrants the conclusion of the trial court, that defendants' operator was negligent in failing to yield to the Goodrich car its half of the road. The court finds the Goodrich car guilty of the same sort of negligence, that is, that the negligent acts of the operator concurred in producing the disaster. Defendants contend that they should have been apprised by the complaints that the plaintiffs' causes of action were founded on the concurring negligence of both drivers. Each plaintiff is suing these defendants, as each had the right to do, although the negligence of a third party might have contributed to the injury. Each tort-feasor can be sued separately; Shea v. Hemming, 97 Conn. 149, 155, 115 A. 686; Sullivan v. Krivitsky, 100 Conn. 508, 123 A. 847; and since the action may be so brought, no allegations are required in the complaint except such as shall properly set forth the liability of the defendant sued.

It is further urged on behalf of the defendants that the trial court required of the defendants a higher degree of care in the premises than that fixed by law. The law of the road defined in Public Acts of 1923, Chapter 246, § 1, requires that the driver of a vehicle upon the highway meeting another vehicle shall "seasonably turn to the right so as to give half of the traveled portion of such highway, if practicable, and a fair and equal opportunity to the person so met to pass." It is urged that the trial court imposed upon defendants the duty to yield half of the way to the Goodrich car "at all hazards." Nothing of this sort appears from the finding. In the facts therein found it is clear that the court held defendants' operator to no higher degree of diligence than due care to yield the Goodrich car one half of the traveled road and to turn "if practicable." There is nothing in the finding to show that such a turning was not practicable. Defendants' operator had turned so that only the end of the truck was over the middle line of the road, and the whole truck was headed diagonally across the road. Defendants' operator had turned, but he had not begun his turn soon enough; his act was not seasonable. Therein lay his negligence. Due care is care proportioned to any given situation, its surrounding peculiarities and hazards. It may and often does require extraordinary care. Defendants' combination of vehicles was singular and unusual. It did not present the usual features of a car hitched behind another car by a rope or chain, with a man at the steering wheel of the towed vehicle, exercising control apart from the towing car, but while its connection with the forward car was somewhat rigid, still it appears from the method of fastening the cars together, as detailed in the finding, there was necessarily some degree of play and the combined cars were not continuously rigid. Such a combination, moving at night, developed a unique situation, and certainly demanded a high degree of diligence to constitute due care. But the defendants urge that if Goodrich had been a little more careful in his observance of the rule of the road, he would have cleared the truck. This is true; the court has so found, but this does not avail the defendants as against these plaintiffs, whom the court has found in no way contributed to their injuries. Defendants also insist that their driver did all that could reasonably be expected of him under the circumstances, thinking as he must in fractions of a second. His fault, however, was not that he did not act reasonably, but that he did not act seasonably. There is nothing in the finding to show that he was required to think in fractions of a second. There is no express finding of the distance between the two cars, when each might have seen the other approaching, nothing to indicate that either car had just turned in from an intersecting road, or that the road from Milldale to Cheshire was not straight for a considerable distance. If the road situation presented a factor important in the case favorable to defendants, there undoubtedly would have been a claim by defendants to have it in the finding, and the court would have found the fact in that regard.