Jordan v. Apter

• Decision Date: 19 February 1919
• Citation: 93 Conn. 302,105 A. 620
• Court: Connecticut Supreme Court
• Parties: JORDAN et al. v. APTER.

105 A. 620

93 Conn. 302

JORDAN et al. v. APTER.

Supreme Court of Errors of Connecticut.

February 19, 1919

Appeal from Superior Court, Hartford County; Lucien F. Burpee Judge.

Action by Patrick Jordan and another against Abraham J. Apter to recover damages alleged to have been caused by the defendant's negligence. Facts found, and judgment rendered for the plaintiffs to recover $2,000, and defendant appeals. No error.

The plaintiffs allege that:

" On the 24th day of February, 1915, at about the hour of 9 a. m., said Patrick Jordan, an employé of the said Oliver W. Mills, and in the course of his employment was on a public street known as Windsor avenue in the city of Hartford, at a place in said street near Westland street which said place is a stopping station for passing trolley cars, and at which said station, at the said time, there was stationed a north-bound trolley car, and the said Patrick Jordan was then and there carelessly and negligently run into by an automobile run and operated by the defendant, at reckless speed, and by the want of proper care and attention on his part. Solely by reason of the defendant's negligence as aforesaid, the plaintiff, Patrick Jordan received a fracture of the outer end of the right collar bone, and also a fracture of the left fibula in the upper third, together with a very severe sprain on the left ankle, and his body otherwise injured, sore, maimed, and disordered, and suffered and still suffers great pain and distress; that he has been, and will be for a long time, unable to labor, and from which he was receiving an income of $15 per week; that he has necessarily expended a large sum of money, _____, in endeavoring to be cured of his said injuries, and will hereafter expend a large sum of money in further necessary medical treatment. Said injuries were caused solely by the carelessness and recklessness of the defendant, and without fault on the part of the said Patrick Jordan."

These allegations were met by a general denial. The answer also contains three other defenses which for the purposes of this case need not be stated.

A $2,000 judgment to plaintiff, who sustained serious permanent injuries to face, shoulders, fingers, and legs, who was in hospital for five weeks, and unable to work for four months after accident, and who earned $30 and board a month, was not excessive.

John J. Dwyer, of Hartford, for appellant.

Saul Berman and Charles Sudarsky, both of Hartford, for appellees.

RORABACK J.

The appeal claims certain corrections in the finding; assigns error in the rulings of the court upon the question of negligence, and the rendition of a judgment in favor of the plaintiff, and in the assessment of damages. The defendant contends that there are material variances between the allegations of negligence and the evidence offered in support of them. The complaint, although loosely drawn, states facts which constitute a good cause of action. It also appears that the allegations set forth in the complaint are broad enough, in the absence of objection to warrant the admission in evidence of all the facts found by the trial court. Therefore there was no material variance. Moreover, there was no motion made that the complaint be made more specific or any objection raised as to the admission of the plaintiff's testimony. The defendant, after contesting the case upon its merits, without objection or protest, cannot now maintain that it appears that there are material variances between allegations and proof.

The trial court has found from the evidence that the plaintiff at the time of the alleged injury was in the exercise of due care, and that his injuries were sustained by the negligence of the defendant.

The defendant contends that neither of these conclusions are warranted by the evidence which is now before us, and we are asked to correct the finding so that it shall express directly opposite conclusions. This we cannot do, as the record discloses that there was evidence from which the trial court could have fairly reached the conclusions complained of. The same considerations apply with equal force to all of the exceptions made by the defendant as to the finding of facts as made. The testimony as to all of these matters was conflicting, and it clearly appears that the trial court might have reasonably reached the conclusions which it adopted.

Several assignments of error are not supported by the record. They all relate to alleged refusals to find as requested. An examination of the record discloses that not one of...