Hemming v. City of New Haven

• Decision Date: 04 January 1910
• Citation: 74 A. 892,82 Conn. 681
• Court: Connecticut Supreme Court
• Parties: HEMMING v. CITY OF NEW HAVEN.

74 A. 892

82 Conn. 681

HEMMING

v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

Jan. 4, 1910.

Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.

Action by Gustave H. Hemming against the City of New Haven. From a judgment for plaintiff, defendant appeals. Affirmed.

Edward H. Rogers and Charles G. Gardner, for appellant. Charles S. Hamilton, for appellee.

RORABACK, J. On September 21, 1907, Ley & Co., electrical contractors, were constructing a conduit on Chapel street in New Haven under a contract with the United Illuminating Company for the purpose of laying its underground system of wiring in said highway, and for that purpose had caused an excavation to be made on Chapel street. On September 21st, an automobile owned by the plaintiff and driven by him personally came through Temple street in a southerly direction, and ran into this excavation, causing the injuries described in the complaint. This automobile had been purchased by the plaintiff on July 27, 1906, of one Holcomb. Prior to July 27, the plaintiff had owned another automobile which was duly registered by the Secretary of State, pursuant to the statute then in force. The plaintiff had not made application to the Secretary of State for registration of the automobile last purchased until September 21, 1907, when he mailed his application, inclosing his check for registration fee, at the post office in New Haven, to the Secretary of State, by whom it was received September 23, 1907. On September 28, 1907, a certificate of registration for the automobile driven by the plaintiff at the time of the accident was issued by the Secretary of State as provided for by law. The registration mark displayed by the plaintiff at the time of the accident bore the number which had been assigned to him as the owner of another automobile owned by him, and which had been disposed of prior to the accident. The reasons of appeal relied upon are that the court erred in refusing to charge as requested and in the charge as given.

The defendant requested the court to instruct the jury as follows: "The burden of proof is on the plaintiff to prove by a preponderance of the evidence that at the time of the accident he had the authority of the state of Connecticut to use his machine on the highways of the state, and if the plaintiff does not prove that he had such authority and license he cannot recover, and your verdict should be for the defendant. If at the time of the accident the plaintiff did not have the authority of the state of Connecticut to use his automobile described in the complaint on the highways of the state, he cannot recover, and your verdict should be for the defendant." The court declined to give these rulings, but instructed the jury that the plaintiff's failure to register would not of itself bar his right to recover, since the law does not provide that one who fails to register his automobile cannot make use of it upon the highway. "The failure of the plaintiff to register his automobile cannot be held to tend to prove contributory negligence on the part of the plaintiff, unless you find that such conduct was illegal, and that it directly contributed to the accident upon which this case is founded—that is, unless you find it to have been the cause, or one of the causes, of this accident; and no such claim—that is, that this did directly contribute to the accident— is...