Fleischer v. Kregelstein

• Decision Date: 18 December 1962
• Citation: 150 Conn. 158,187 A.2d 241
• Court: Connecticut Supreme Court
• Parties: Patricia FLEISCHER v. Francis KREGELSTEIN et al. Supreme Court of Errors of Connecticut

Page 241

187 A.2d 241

150 Conn. 158

Patricia FLEISCHER v. Francis KREGELSTEIN et al.

Supreme Court of Errors of Connecticut.

Dec. 18, 1962.

Alexander Winnick, New Haven, with whom, on the brief, were Edward B. Winnick and Arnold M. Potash, New Haven, for appellant (plaintiff).

Charles A. Watrous, New Haven, with whom was William P. Simon, New Haven, for appellee (defendant Sweet).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

MURPHY, Associate Justice.

The plaintiff sued to recover for injuries which she allegedly sustained in a three-car chain-reaction collision. She recovered a verdict against Stephen Sweet, hereinafter called the defendant. The trial court set aside the verdict because of errors in the charge. The plaintiff has appealed from the decision granting the motion to set aside the verdict.

Since the plaintiff briefed only her assignments of error relating to the charge, all others are treated as abandoned. West Realty Co. v. Ennis, 147 Conn. 602, 603, 164 A.2d 409; State v. Harris, 147 Conn. 589, 591, 164 A.2d 399, and cases cited. One of the assignments of error which we regard as abandoned attacks a finding that the defendant had offered evidence to prove and claimed to have proved that at some unspecified date between the date of the accident and more than a year later the plaintiff's dog was killed and that the death of the dog had important adverse effects on the plaintiff's preexisting colitis although the extent of these effects was not shown. The defendant, relying on the failure of the plaintiff to make any reference in her brief to this assignment of error, properly considered it as abandoned and so stated in his brief. He did not go into the merits of the claim, nor did he include in his appendix, under Practice Book § 447, the evidence relevant to the issue, as he would be expected to do if the plaintiff had briefed the assignment. In oral argument, the plaintiff asserted that she was not abandoning the assignment. Under the circumstances, this assertion came too late. Where an assignment of error is to be pursued, it must be briefed. Any other rule would work an injustice and hardship on the adverse party. Cushing v. Salmon, 148 Conn. 631, 633, 173 A.2d 543.

One of the allegations of negligence was that the defendant was operating his vehicle with inadequate and defective brakes. There was no evidence that any of the cars involved had defective brakes. In the charge, the court, in referring to this specification of negligence, quoted a portion of General Statutes § 14-80(a), which relates to adequacy of brakes, and stated that a violation of it would be negligence per se. In the absence of any evidence that the braking systems of any of the vehicles involved failed to comply with the relevant provisions of § 14-80, the issue of inadequate or defective brakes should not have been committed to the jury. Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250. The court acted properly in setting aside the verdict for this reason. McDonough v. Lenox Theater Co., 143 Conn. 646, 648, 124 A.2d 520; Frisbie v. Schinto, 120 Conn. 412, 416, 181 A. 535.

The plaintiff offered evidence to prove that her preexisting colitis became aggravated as a result of the accident. The defendant offered evidence to prove that the...