Kilday v. Voltz

• Decision Date: 20 June 1933
• Citation: 117 Conn. 170,166 A. 754
• Court: Connecticut Supreme Court
• Parties: KILDAY v. VOLTZ et al.

166 A. 754

117 Conn. 170

KILDAY v. VOLTZ et al.

Supreme Court of Errors of Connecticut.

June 20, 1933

Samuel H. Platcow and James J. Corrigan, both of New Haven, for appellant.

Joseph B. Morse, Philip Pond, and Daniel D. Morgan, all of New Haven, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

MALTBIE, Chief Justice.

The plaintiff, with several others, was a passenger in an automobile being driven by James L. Kilday when it came into collision at a street intersection with an automobile operated by one of the defendants within the scope of his employment by the other defendant. Four actions were brought against the defendants as a result of the injuries received in the accident by those riding in the Kilday car one being brought by Kilday himself, and all were tried and submitted to the jury together. The jury returned a verdict in the case before us for the defendants, and the plaintiff has appealed.

The plaintiff assigns error in certain portions of the charge. She filed no requests to charge, and the charge as given was as a whole correct in law and adequate for the guidance of the jury. The court did not specifically charge the jury upon the effect of concurrent negligence by Kilday and the defendant driver, but it did charge that, if the jury found Kilday to be guilty of contributory negligence, this would bar a recovery by him, but would have no effect upon a recovery by the other plaintiffs, and this was a sufficient charge under the circumstances of the case. In one portion of the charge the trial court told the jury that it was not their duty to determine who was at fault for the collision and that each driver might have acted as a reasonably prudent person would have; just what the trial court meant to convey by this statement is not clear, but it is to be read in the light of the portion of the charge immediately following where the trial court correctly instructed the jury as to their duty to determine whether the defendant driver was guilty of negligence which was a proximate cause of the accident and whether each of the plaintiffs was guilty of contributory negligence; and, in view of that instruction and the discussion of the issues elsewhere in the charge, we cannot see how the jury could have been misled.

The trial court submitted to the jury the issue whether the plaintiff was guilty of contributory negligence. She claims that, upon the facts stated in the finding, there was no conclusion reasonably possible, except that she was not guilty of contributory negligence, and contends that the trial court should not have left the issue to the jury. In Board of Water Commissioners v. Robbins, 82 Conn 623, 643, 74 A. 938, we said that it was the duty of a court to submit no issue to the Jury which was foreign to the facts in evidence or upon which no evidence had been offered sufficient to afford a reasonable basis for more than one conclusion. See, also, Carlson v. Connecticut Co., 94 Conn. 131, 137, 108 A. 531, 8 A.L.R. 569. We have held in a number of cases that it was error to submit to the jury as a basis for recovery by the plaintiff an issue which was not raised by the pleadings or had no reasonable basis in the evidence. Berman v. Kling, 81 Conn. 403, 71 A. 507; Swayne v. Felice, 84 Conn. 147, 151, 79 A. 62; Russo v. McAviney, 96 Conn. 21, 28, 112 A. 657; Mills v. Roto Co., 104 Conn. 645, 650, 133 A. 913; Lanfare v. Putnam, 115 Conn. 267, 269, 161 A. 242; Strong v. Carrier, 116 Conn. 262, 265, 164 A. 501. In Fine v. Connecticut Co., 92 Conn. 626, 630, 103 A. 901, however, we pointed out that the submission of such an issue while improper might not under all conditions constitute harmful error. In Sullivan v. Krivitsky, 100 Conn. 508, 510, 123 A. 847, a case where there was no evidence before the jury upon which they could reasonably find the plaintiff, a passenger in an automobile, guilty of contributory negligence, we said that the trial court should have so instructed them. But we did not found our decision of that...