Herb v. Kerr

• Citation: 190 Conn. 136,459 A.2d 521
• Court: Connecticut Supreme Court
• Decision Date: 17 May 1983
• Parties: Leo HERB III v. George KERR.

Page 521

459 A.2d 521

190 Conn. 136

Leo HERB III v. George KERR.

Supreme Court of Connecticut.

Argued Jan. 7, 1983.

Decided May 17, 1983.

Francis A. Smith, Jr., Bridgeport, with whom was Robert F. Moriarty, Bridgeport, for appellant (defendant).

Anthony P. Copertino, Jr., Bridgeport, with whom was Leopold P. DeFusco, Bridgeport, for appellee (plaintiff).

Before SPEZIALE, C.J., and HEALEY, PARSKEY, SHEA and GRILLO, JJ. SPEZIALE, Chief Justice.

This appeal from a judgment in an action for negligence raises the following issues: (1) whether the trial court erred in its instructions on the element of proximate causation; (2) whether the trial court erred in refusing either to set aside the verdict as being excessive or to order a remittitur; and (3) whether the trial court erred in refusing to set aside the verdict as being against the law and the evidence. We find no error.

The jury could reasonably have found the following facts: On the afternoon of June 9, 1976, the plaintiff had stopped his motorcycle at a red light at an intersection on Main Street in the town of Stratford, in the southbound lane. The defendant's automobile had stopped nearby at another traffic signal, facing northbound. When the lights changed, the plaintiff drove straight ahead, but the defendant turned left across Main Street, thereby colliding with the plaintiff's motorcycle. The collision caused substantial injuries to the plaintiff.

The plaintiff's amended complaint set forth a cause of action in both common law and statutory negligence. In his answer the defendant denied being negligent, alleged by way of special defense that the plaintiff's damages were due to his own negligence, and counterclaimed for damage to his own automobile.

The defendant's first claim of error is based on the trial court's failure to repeat its instructions on the element of proximate causation after charging the jury on statutory negligence. The defendant claims that the trial court's failure to repeat the proximate causation requirement after its lengthy explanation of the statutes involved led the jury to believe it could impose liability solely on the basis of the statutory violation without regard for whether the violation proximately caused the collision and the plaintiff's damages.

It is a well settled rule that "a charge to the jury is to be read as an entirety and to be judged by its total effect ...." Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d 482 (1979); Magnon v. Glickman, 185 Conn. ---, --- (43 CLJ 6, pp. 11, 14) 440 A.2d 909 (1981). If a trial court has already "charged thoroughly ... on the subject of proximate cause ... [t]here [is] no necessity to repeat those portions of the charge." DePaola v. Seamour, 163 Conn. 246, 253, 303 A.2d 737 (1972). In the case before us, the trial court's instruction that a statutory violation must have proximately caused the plaintiff's damages in order to be actionable was given just prior to its instruction on the various allegations of negligence set forth in the complaint, and provided sufficient guidance for the jury. ¹

The defendant's second claim is that the trial court erred in refusing either to set aside the verdict as being excessive or to order a remittitur where only $21,442.31 of a $202,500 award represented special damages. " 'The trial court's refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.... On appeal, the conclusion of the trial court from the vantage point of the trial bench cannot be disturbed unless the court abused its discretion....' Katsetos v. Nolan, 170 Conn. 637, 656, 368 A.2d 172 [1976]." (Citations omitted.) Nichols v. Coppola Motors, Inc., 178 Conn. 335, 349, 422 A.2d 260 (1979). The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense of justice. The test is whether the amount of damages awarded falls within the necessarily uncertain limits of fair and just damages. Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157 (1...