Fritz v. Gaudet

• Decision Date: 02 June 1924
• Citation: 101 Conn. 52,124 A. 841
• Court: Connecticut Supreme Court
• Parties: FRITZ v. GAUDET ET AL.

124 A. 841

101 Conn. 52

FRITZ v. GAUDET ET AL.

Supreme Court of Errors of Connecticut.

June 2, 1924

Appeal from Superior Court, New London County; Isaac Wolfe, Judge.

Action by Henry F. Fritz against Darius G. Gaudet and one Santti. Judgment of nonsuit in favor of second named defendant, and verdict for first named defendant, and plaintiff appeals from a denial of his motion to set aside judgment of nonsuit and from the judgment for first named defendant. No error as to Gaudet, and error and new trial ordered as to Santti.

Benjamin H. Hewitt, of Mystic, for appellant.

George R. McKenna, of Westerly, R. I., for appellee Santti.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and MARVIN JJ.

PER CURIAM.

Upon due consideration of the evidence in the light of our established rule governing the trial court in granting a nonsuit in favor of Santti, we are of the opinion that the case ought to have been submitted to the jury. In Girard v. Grosvenordale Co., 83 Conn. 20, 25, 74 A 1126, 1128, the court, by Chief Justice Baldwin, stated our rule to be:

" In passing upon the motion, the superior court was bound to regard the truth of such of the evidence introduced by the plaintiff as went farthest in support of the complaint, as admitted, and to take into account every favorable inference that might legitimately be drawn from it. It was enough if he had thus made out a prima facie case though it might in the opinion of the court be a weak one. ‘ A party has the same right to submit to a jury a weak case as he has to submit a strong one.’ Cook v Morris, 66 Conn. 196, 211, 33 A. 994."

This rule is too firmly established in our law to be now changed or modified. On the appeal as to Gaudet the plaintiff has assigned numerous errors based upon the charge as made and the failure to charge. The assignment of errors in the charge concern matters so obviously correct and so frequently considered by this court that we omit their rediscussion at this time.

The errors based on the failure of the court to charge we shall not consider, since no requests to charge in these particulars were made, and the charge clearly and accurately presents the cause of action against Gaudet, and thus summarizes it:

" Now it must appear before Gaudet can be held liable for this claimed negligent act that it was in fact a negligent act on his part; and it must appear that he knew or in the exercise of reasonable care

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