Darrow v. Fleischner

• Decision Date: 07 November 1933
• Citation: 117 Conn. 518,169 A. 197
• Court: Connecticut Supreme Court
• Parties: DARROW v. FLEISCHNER et al.

169 A. 197

117 Conn. 518

DARROW v. FLEISCHNER et al.

Supreme Court of Errors of Connecticut.

November 7, 1933

Appeal from Superior Court, New Haven County; Patrick B O'Sullivan, Judge.

Action by Florence E. Darrow against Hyman Fleischner and another to recover damages for injuries to plaintiff's person and property. There was a verdict and judgment for plaintiff, and defendants appeal.

No error.

The portion of the court's charge relating to " risk of collision" was as follows:

" It, of course, is true that the automobile in which the plaintiff was riding was on the right of the automobile in which the defendant was riding. That fact, and that alone would not give the plaintiff's car the right of way. The plaintiff's car would have the right of way only in the event that at the speed at which it was then going in comparison with the speed at which the defendant's car was going, and in the exercise of due care on the part of both drivers, there would be a risk of a collision between the two automobiles if they continued on their courses. If that were so, if the risk of collision would be present, then the plaintiff's car would have the right of way over the defendant's car, and with the knowledge that she did have that right of way, she could proceed through the intersection, of course exercising the care which a person of ordinary prudence would exercise, who was proceeding with the knowledge that he did have the right of way."

Irving Sweedler and Samuel E. Hoyt, both of New Haven, for appellants.

Joseph B. Morse, Philip Pond, and Daniel D. Morgan, all of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

MALTBIE, Chief Justice.

The plaintiff brought this action to recover for injuries to her person and property resulting from a collision at a street intersection between an automobile she was driving and one owned by one of the defendants and being operated by the other, and from a judgment upon a verdict in her favor the defendants have appealed. The only errors assigned relate to the charge of the trial court. In defining the obligation of the plaintiff as regards the burden of proof resting upon her, the trial court charged the jury that " she must prove by the better evidence, by evidence which is more satisfying to you gentlemen," the essentials of the cause of action alleged; in other places in the charge the court, in speaking of the burden resting upon the plaintiff stated that it required proof by " the better evidence" ; and nowhere in the charge did it further define the duty resting upon her. The test to apply in determining whether the charge constituted reversible error in this respect is stated in Mead v. Husted, 52 Conn. 53, 52 Am.Rep. 554. In that case the trial court instructed the jury that, if " you believe, fairly and honestly, that it is more likely to be true that the defendant did set fire to these barns of the plaintiff than that he did not, you ought to render a verdict for the plaintiff." We said (page 57 of 52 Conn.) that, had the trial court, instead of using the language which it did, simply told the jury that a preponderance of evidence in favor of the plaintiff would justify a verdict in his favor, no fault could be found with the charge. " It would have been the language usually employed, which is always safer for the court than to substitute other words not so common. Nevertheless, if the substituted phrase would be understood in the same way by the jury, or if it is in fact fairly equivalent in meaning, a new trial should not be granted on that account. In the connection and in view of the instructions as to the burden of proof and the duty of the jury to examine the whole evidence and give the defendant the benefit of the presumption in his favor, we think it must have had the same effect on the jury as the ordinary language would. But it is claimed that the law can not sanction the use of the substituted phrase or regard it as equivalent. The judge, instead of requesting the jury to weigh the evidence and determine the result by the preponderance, asked them to consider it all, and then gave them the true and only weighting scales whereby preponderance could be determined, namely, the effect on the honest mind of each juror. If the effect was to convince the...