Opinion
The doctor who examined the plaintiff after the accident testified, on the trial to the court, that he was told that the plaintiff was hurt when he "ran into" the defendant's car as he was running for a bus. When it developed, on cross-examination, that this crucial statement had probably not been made by the plaintiff or in his hearing, the court should have granted the plaintiff's motion to strike the testimony on the ground that it was hearsay. The failure to do so was, however, harmless, since the same picture of the accident was established by the plaintiff's admissions to other witnesses and the unquestioned findings showed that the omission of the doctor's testimony would not have been at all likely to affect the result.
Argued June 5, 1958
Decided July 8, 1958
Action to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant, brought to the Superior Court in Hartford County and tried to the court, Murphy, J.; judgment for the defendant and appeal by the plaintiff. No error.
Joseph Neiman, for the appellant (plaintiff).
Arthur E. Howard, Jr., with whom was P. Corbin Kohn, for the appellee (defendant).
The plaintiff was injured in attempting to reach a bus near the intersection of Ford and Pearl Streets in Hartford. The bus had been traveling west on Pearl Street and had stopped in the southerly of the two westbound lanes behind one or two other vehicles which had come to a stop at the intersection for the traffic light. The defendant was also driving west. Her automobile was some little distance behind the bus and was in the northerly of the westbound lanes. The plaintiff, who was blind in his left eye, crossed from the sidewalk on the north side of Pearl Street to get on the bus although it was not stopped in a place to receive passengers or on a crosswalk. He collided with the defendant's car. The trial court rendered judgment for the defendant, and the plaintiff has appealed.
Of the errors assigned, only two are pressed in brief and argument. Both concern rulings on evidence. The contributory negligence of the plaintiff was a decisive issue in the case. He claimed that before he left the sidewalk he looked to his left but did not see the defendant's car. The defendant claimed that the plaintiff ran into her car while it was standing still and fell, injuring himself. Immediately after the accident, the defendant took the plaintiff in her automobile to the office of Dr. John Shoukimas, although the plaintiff insisted that he was not injured. The doctor examined him. He was called as a witness by the defendant and testified: "This history [of the accident] was given both by the [plaintiff] and by [the defendant] and they both confirmed it, stating that while [the plaintiff] was running for a bus . . . he ran into [the defendant's] car." On cross-examination the doctor stated that he had made notes, which he had in court; that the defendant had related the circumstances of the accident; that all of what she said was not in the hearing of the plaintiff, and that he, the doctor, could not recall what portion of what she said was in the plaintiff's hearing and what was not. The plaintiff moved to strike out the doctor's testimony, so far as it related to the history of the accident, as hearsay. The court denied the motion. The defendant and a police officer who investigated the accident testified to the effect that the plaintiff admitted that he was running to catch the bus and "bumped into" the defendant's car.
The plaintiff's motion should have been granted. It appeared from the cross-examination of Dr. Shoukimas that the statement contained in his notes to the effect that the plaintiff was running for the bus and ran into the defendant's automobile was not made by the plaintiff. Consequently, it did not come within the rule stated in Gilmore v. American Tube Stamping Co., 79 Conn. 498, 504; 66 A. 4, and cases cited therein; see Johnson v. Toscano, 144 Conn. 582, 591, 136 A.2d 341. An erroneous ruling on evidence, however, does not constitute reversible error if it is harmless. DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798. That the plaintiff was running to catch a bus and "bumped into" the defendant's car was sufficiently established by his admissions to other witnesses. Meech v. Malcolm, 88 Conn. 720, 728, 92 A. 657; Shea v. Hemming, 97 Cone 149, 155, 115 A. 686; Falso v. Poli-New England Theatres, Inc., 127 Conn. 367, 373, 17 A.2d 5; Maltbie, Conn. App. Proc., 31. In view of the facts found by the trial court and not questioned, it cannot be said that the omission of Dr. Shoukimas' testimony as above set forth would have been at all likely to affect the result. Maltbie, op. cit., p. 27. Therefore the plaintiff can take nothing by the assignment of error in this ruling on evidence.
By the other ruling, evidence was excluded as improper rebuttal, which it was. In any event, the ruling cannot be considered because no exception was taken. Practice Book 155; Delfino v. Warners Motor Express, 142 Conn. 301, 308, 114 A.2d 205.