Di Bernardo v. Connecticut Co.

• Decision Date: 31 March 1924
• Citation: Di Bernardo v. Connecticut Co., 100 Conn. 612, 124 A. 231 (Conn. 1924)
• Court: Connecticut Supreme Court
• Parties: DI BERNARDO v. CONNECTICUT CO.

124 A. 231

100 Conn. 612

DI BERNARDO v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

March 31, 1924

Appeal from Superior Court, Hartford County; James H. Webb, Judge.

Action by Salvatore Di Bernardo against the Connecticut Company to recover damages for injuries to person and property alleged to have been caused by defendant's negligence. From a judgment for plaintiff for $1,750, plaintiff appeals. No error.

Plaintiff's second reason of appeal complained of the charge, " The defendant, as you of course fully realize does not deny its liability to the plaintiff to extend to him fair, reasonable, proper, just compensation," as making the jury naturally feel a strong prejudice against plaintiff for not being willing to be fair, reasonable, and just. Plaintiff's third reason of appeal complained of the court's failing to recall that the item concerning expense of feeding the horse was testified to by plaintiff and No. 7 objected to the court's understatement of the testimony of a physician with reference to future pain because of the use of the word " possibility" instead of " probability."

Portions of the charge were as follows:

" I don't recall whether any consideration was given to the cost of maintaining his equipment, or the feeding of his horse, taking care of his probable expense of doing business, other than the cost of the ice that he purchased. I don't recall that that item came into his testimony. As a matter of common knowledge, there must have been some expense.

Then your attention has been called to the fact, the claim, that he was making a hundred dollars profit depends entirely upon his own testimony, not corroborated by any account books of any description. He said, by his counsel, that he does not have an organized office force, as a department store would have--presumably not, but I would be very much surprised if as intelligent a person as the plaintiff appeared to be on the witness stand, if he did not have a little pocketbook where he put down the ice he charged to his various customers from time to time, and some little, however crude, record of his payments to the company from which he purchased ice. However that may be, this estimate is a statement of best recollection and I am sure you will not be justified in reaching a conclusion that the plaintiff deliberately falsified his testimony in that respect, but, after all, it is an estimate, and you will give it such consideration as you think it deserves, and you will properly consider, perhaps the suggestion of defendant's counsel in argument that a profit, if it is to be called a net clean profit of a hundred dollars a week for peddling ice in the eastern part of the city, as appeared from the testimony in this case, was the occupation that the plaintiff pursued, was a pretty substantial, comfortable little business, and a business which if it was earning a net profit of $100 a week would perhaps seem to any prudent man accustomed to affairs ought to have been in some way secured and saved. The fact that the plaintiff met with this unfortunate accident and was physically disabled for some weeks at least from his going around on the ice wagon and distributing ice, if it was as valuable a business as it would appear to be from the estimates the plaintiff has given us of the earnings, it would seem would either have sold out his privileges to some other dealer, or employed some one to carry it on in some one of the great varieties of ways so the business perhaps could have been conserved. * * *

‘ There is a possibility, as the doctor testifies, that with the changes of weather in the future, there may be some little pains occasionally in the lumbar region, and you will take that into consideration and give it such weight as you think it deserves.

Now, I feel very sure, gentlemen, that you will not permit sympathy to enter into your deliberations. I am also very sure, from my experience with Connecticut juries, that you will not permit the fact that it is a corporation, one of the public utility corporations of the state, to in any way influence you or prejudice you in reaching a fair verdict in this case. I have had occasion to feel, and to remark, when several opportunities have occurred to me in recent years, from some long experience at the bar and a good many years on the bench, that I have had a great confidence and respect for the judgment and good sense of our Connecticut juries in disposing of the difficult problems that are presented to them, and determining the rights of parties, and determining what damages should be awarded to adequately and sufficiently compensate for injuries, contrasted with what we read in the papers about verdicts rendered by juries sometimes in other states (New York and elsewhere); we are to be congratulated, I think, that our Connecticut juries, almost without exception, weigh these problems fairly and as honest men, prudently and without sympathy, and reach verdicts which to them seem to be just and proper, and which, as a rule, commend themselves to the judgment of the court and to all concerned."

Jacob Berman, of Hartford, for appellant.

Joseph F. Berry, of Hartford, for appellee.

CURTIS, J. (after stating the facts as above).

In this action there was no controversy that the defendant was liable for all injury to the person and property of the plaintiff caused by a collision of a trolley car of the defendant with a horse and wagon of the plaintiff while being driven by him.

The plaintiff, deeming that the damages awarded were inadequate under the evidence, moved that the verdict be set aside as against the evidence, and upon the denial of the motion appealed from the action of the court in denying the...