Goodman v. Norwalk Jewish Center, Inc.

Citation145 Conn. 146,139 A.2d 812
CourtSupreme Court of Connecticut
Decision Date06 March 1958
PartiesRobert M. GOODMAN, Executor (Estate of Francine C. Goodman), v. NORWALK JEWISH CENTER, Inc. Supreme Court of Errors of Connecticut

Morris Robinson, So. Norwalk, for appellant (plaintiff).

Paul v. McNamara, Bridgeport, for appellee (defendant).

Before WYNNE, C. J., and BALDWIN, DALY, KING and BORDON, * JJ.

KING, Associate Justice.

Francine E. Goodman fell while descending the outside steps of a building owned by the defendant. She died prior to the institution of this action, in which her husband, as her executor, seeks to recover damages for the personal injuries sustained by her as a result of her fall. The finding indicates no claim of proof that the fall caused her death. The defendant had a verdict. There were a number of issues in the case, including that of charitable immunity. In answer to one of five interrogatories, the jury found that the decedent was chargeable with contributory negligence. If there was no error affecting that issue, it will be unnecessary to consider the assignments of error affecting only the other issues. Beal v. Merritt-Chapman & Scott Corporation, 145 Conn. 43, 45, 138 A.2d 518; Himmelstein v. General Electric Co., 144 Conn. 433, 436, 133 A.2d 617.

Certain fundamental rules must be kept in mind. In the first place, General Statutes, § 7836 provides in part: '[I]t shall be presumed that * * * [the] person * * * who was injured * * * was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence be relied upon as a defense, it shall be affirmatively pleaded by the defendant * * *, and the burden of proving such contributory negligence shall rest upon the defendant.' A plea of contributory negligence 'shall specify the negligent acts or omissions on which he relies.' Practice Book, § 104. It necessarily follows that the burden of proof, in the sense of the risk of nonpersuasion, on the issue of contributory negligence rests throughout on the defendant and that an injured party can be found chargeable with contributory negligence only in a respect fairly within the purview of the allegations of an appropriate special defense. McPheters v. Loomis, 125 Conn. 526, 534, 7 A.2d 437; Vignone v. Pierce & Norton Co., 130 Conn. 309, 316, 33 A.2d 427; Chase v. Fitzgerald, 132 Conn. 461, 465, 45 A.2d 789, 163 A.L.R. 247.

The defendant's special defense charged contributory negligence on the part of the decedent 'in failing to make proper use of her senses and faculties in descending said staircase.' Consequently, the jury's finding of contributory negligence, if it is to stand, must have been predicated on a finding of negligence on the part of the decedent in one or more of the respects alleged in the special defense. As to errors assigned in connection with the charge, it must be kept in mind that the charge is tested by the claims of proof in the finding. Nicholson Realty, Inc. v. Libby, 144 Conn. 555, 557, 135 A.2d 738. Under the defendant's claims of proof, the senses which it is claimed the decedent failed to use were limited to that of sight, in looking at the steps, and that of touch or feeling, in the use and placement of a crutch and its tip. While the reasonable meaning of 'faculties' is bodily powers, which might include the functioning of eyes, hands, arms, legs and feet, there was nothing in the defendant's claims of proof even suggestive of negligence in the decedent's use of the handrail.

The plaintiff claims that the court erred in adding to the finding, in the claims of proof of the defendant, certain matters not covered in the defendant's counterfinding. This assignment is without merit. It is the right of the court, in a finding in a jury case, fairly to include all claims of proof material to the questions of law which a request for a finding made pursuant to the requirements of Practice Book, § 398 has stated it is desired to have reviewed on the appeal. Maltbie, Conn.App.Proc., § 145. This right cannot be abridged or circumscribed by any shortcomings in the statements as to the claims of proof, whether they occur in the draft finding or in the counterfinding or in both. Wilson v. M & M Transportation Co., 125 Conn. 36, 42, 3 A.2d 309. One of the additions made to the finding in the present case was material to the questions determined in this appeal.

Two assignments of error attack the charge as given, but since no objection was made nor exception taken to the portions in question, the court was given no opportunity to correct the charge, or, indeed, to rule on either of the claims now made. We do not consider these assignments. Practice Book § 153. The only other assignments of error in the charge affecting the issue of contributory negligence involve the failure of the court to grant certain requests to charge. A number of these requests were well-drafted and might well have been given substantially unchanged. A court, however, is not required to charge in the precise words of even a properly drawn request. If a request is material, the duty of the court is fulfilled by incorporating its substance in the body of the charge, at a proper place, in the court's own language. Maltbie, Conn.App.Proc., § 111, p. 135.

One request to charge correctly asked the court to instruct the jury that no negligence of the husband of the decedent, who was escorting her at the time of her fall, could be imputed to her. The charge as a whole fairly presented the fundamentals of the defense of contributory negligence and, especially in connection with the interrogatory regarding this issue, made clear to the jury that it was negligence on the decedent's part, and not negligence on the part of her husband, which could be found to constitute contributory negligence.

There was evidence that the decedent had sustained other fractures and that she lacked co-ordination owing to those fractures. She was using crutches at the time of her fall. The plaintiff's claims of proof were that when the decedent left the building the stairs were in darkness; that as she went to descend them she gave her husband her right crutch, supported herself by holding the handrail in her right hand, and descended the stairs by placing the crutch on the first step below her, shifting her weight to the crutch, and lowering one foot at a time, until both feet were on the step below; that because of inadequate lighting, she placed her crutch on the edge of the third step instead of farther in toward the riser; and that as she shifted her weight to the crutch it slipped off the edge of the third step down to the fourth step, causing her to fall...

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25 cases
  • Zimny v. Cooper-Jarrett, Inc.
    • United States
    • Connecticut Court of Appeals
    • August 5, 1986
    ...found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence." Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 154, 139 A.2d 812 (1958); see also Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940). It is the trial court's duty to prote......
  • Goodmaster v. Houser, 14390
    • United States
    • Connecticut Supreme Court
    • June 1, 1993
    ...as a party requests, but may incorporate the substance of the request to charge in its own language. Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 150, 139 A.2d 812 (1958); Drummond v. Hussey, 24 Conn.App. 247, 249, 588 A.2d 223 (1991). We therefore understand the plaintiff's claim......
  • Dennler v. Dodge Transfer Corporation
    • United States
    • U.S. District Court — District of Connecticut
    • January 24, 1962
    ...found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence. Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 154, 139 A.2d 812 (1958). The essential facts of the case pertaining to this issue, which the jury might reasonably have found are th......
  • Otterbeck v. Lamb
    • United States
    • Nevada Supreme Court
    • July 14, 1969
    ...Cal. 327, 122 P. 962, 39 L.R.A.,N.S., 896 (1912); Trumbley v. Moore, 151 Neb. 780, 39 N.W.2d 613 (1949); Goodman v. Norwalk Jewish Center, 145 Conn. 146, 139 A.2d 812, 815 (1958). The objected-to part of Instruction 12 is misleading and does not correctly state the law. Jones v. Bayley, 49 ......
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