Hulk v. Aishberg

Decision Date07 February 1940
Citation11 A.2d 380,126 Conn. 360
CourtConnecticut Supreme Court

Appeal from Superior Court, Hartford County; Alfred C. Baldwin Judge.

Action by Eva Hulk against Edwin Aishberg to recover damages for personal injuries alleged to have been caused by negligence of defendant and by a nuisance created by defendant, brought to the superior court in Hartford county and tried to the jury. Verdict and judgment for plaintiff for $2,800, and plaintiff appeals.

No error.

Robert P. Butler and Paul Volpe, both of Hartford for appellant (plaintiff).

M. J Blumenfeld, of Hartford (DeLancey Pelgrift, of Hartford), for appellee (defendant).


BROWN Judge.

On January 21, 1938, the plaintiff, who was a tenant of a third floor apartment in the defendant's building at the corner of Zion and Arnold Streets in Hartford, fell and was injured on the common stairway of which the defendant retained control, by reason of ice thereon. At the trial the defendant conceded that he was negligent in permitting this condition, and the case was submitted to the jury solely upon the issues of the plaintiff's contributory negligence and of damages. The jury rendered a verdict for the plaintiff for $2800. The plaintiff has appealed from the denial of her motion to set aside the verdict as inadequate and from the judgment.

The evidence shows that the plaintiff, a married woman thirty-seven years of age living with her family, suffered an injury to her right knee by this fall, necessitating an exploratory operation in March and a second operation in December, 1938, each involving two weeks of hospitalization, and that the total expense for treatment of her injury was $689.93. There was also evidence of loss of earnings of $10 per week, and some as to expense for a helper to do her housework. It also appeared that she suffered pain and inconvenience, and that up to the time of trial in May, 1939, she had been unable fully to resume her usual duties and still had a partial incapacity of 15 per cent. in this knee. Patently, the jury in addition to determining, as was its right, the amount to which the plaintiff was entitled as special damages, awarded the substantial balance of its verdict as general damages for the injury. The law furnishes no precise or definite rule for the assessment of the latter damages, but it must depend largely upon the judgment of the trier in the particular case. Samaha v. Mauro, 104 Conn. 300, 302, 132 A. 455. The court correctly ruled that the verdict could not be set aside as inadequate.

The plaintiff claims that the court erred in failing properly to expound in its charge to the jury the rule as to general damages, in that it dealt with neither permanent disability nor future loss of earnings as potential elements of her damage. In its charge concerning general damages the court correctly instructed the jury to the effect that what they found to be fair and reasonable compensation should be awarded therefor, and sufficiently referred to and explained as elements thereof pain and suffering, loss of sleep, and operative scars upon her knee, and then concluded ‘ the entire condition should be considered, and your damages should be compensatory for all the elements of injury which one has sustained.’ There were no requests to charge. Neither permanent disability nor future loss of earnings was referred to in the charge. Whether this omission constituted error is to be tested by the finding and by the alone. Walters v. Hansen, 99 Conn. 680, 682, 122 A. 564; Porter v. Taylor, 107 Conn. 68, 72, 139 A. 649; Tuckel v. Hartford, 118 Conn. 334, 336, 172 A. 222; Tomlin v. Hukolo, 124 Conn. 694, 695, 2 A.2d 223. As was conceded by her counsel in argument, the plaintiff's only claims of proof in the finding pertinent as to her future disability, are that ‘ at the time of the trial the plaintiff had not sufficiently recovered from her injuries to be able to perform all of her household duties without assistance and...

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