Kuczon v. Tomkievicz
| Decision Date | 31 March 1924 |
| Citation | 100 Conn. 560,124 A. 226 |
| Court | Connecticut Supreme Court |
| Parties | KUCZON v. TOMKIEVICZ. |
Appeal from Superior Court, New Haven County; Christopher L. Avery Judge.
Action by Edward Kuczon against Teofila Tomkievicz. Judgment for defendant, and plaintiff appeals. Affirmed.
Charles S. Hamilton, of New Haven, and Morris M. Wilder, of Meriden, for appellant.
Cornelius J. Danaher, of Meriden, for appellee.
This is an action brought by plaintiff, a minor, by his next friend, William Kuczon, to recover for an injury arising out of the alleged negligent operation of an automobile driven by defendant's son. The complaint alleges that defendant was engaged in the business of baking and selling bakery products, using therein a Ford delivery car for transporting the same; that defendant's son was her servant in this regard, and was acting within the scope and line of defendant's business at the time of the alleged collision with plaintiff; that on October 23, 1920, defendant's son was delivering with this motor vehicle on Olive street in the city of Meriden, and while so engaged, at the intersection of Pleasant street and Olive street, negligently ran into the plaintiff, who was then in the exercise of due care, causing him to fall on the hard paved street and to be thrown under the hind wheel of the car, which thereupon ran over the plaintiff; that plaintiff thereby was bruised and crushed and suffered bruises, contusions, and sprains injuring his nerves, flesh, and bones, causing him great pair and distress, crippling his legs, and causing permanent and incurable injuries. The defendant's answer was a general denial.
The issues in the instant case, then, are three, covering the question of agency of the son, his negligence, and plaintiff's freedom from contributory negligence. A finding by the jury on any one of these in favor of defendant would defeat plaintiff's recovery. The plaintiff's claimed proof as detailed in the finding of the trial court would have justified a verdict in his favor. The proofs of defendant, if found true, would have necessitated a verdict favorable to her.
The jury found a verdict for defendant, and plaintiff's appeal therefrom assigns error in the failure of the court to give certain instructions, in giving certain other instructions, and in excluding certain testimony offered by the plaintiff.
Plaintiff claims error in the refusal of the trial court to give his second requested instruction, which was to the effect that defendant's negligence was to be determined by considering the circumstances surrounding the collision, the situation of Pleasant street and Olive street at the intersection of which the collision took place, the rate of speed of the car, and whether its driver kept a reasonable lookout for children likely to be at that point. While the court did not give this request in the exact terms asked for by the plaintiff, it did plainly and explicitly in the course of the charge bring to the attention of the jury every essential claim contained in the request above summarized.
Having regard to the pleadings, the claimed proofs stated in the record, we fail to see that the part of the charge above quoted was other than a legitimate comment upon the evidence in the case. It certainly was not brought into such relation to the plaintiff's requested instruction as to have been given instead of it or as qualifying it. The plaintiff's brief and argument supporting this contention treats the claimed proofs and the deposition of one Sieracki, which is made part of the finding, but evidently only as a convenient way of stating claimed testimony, as if the matters considered were facts actually found and not statements of claimed proof, and goes on to argue the question as one of fact in a way only appropriate to an argument to the jury, or at most to an appellate tribunal considering the facts upon a claim that the verdict was contrary to the weight of evidence. We can find nothing erroneous in the conduct of the trial court in this regard.
The plaintiff's third request was that--
If the driver of the car " knew, or by the exercise of reasonable care might have known, that a young child the age of the plaintiff was crossing Olive street at the time of the accident, and that the child was apparently unaware of the approach of the defendant's automobile, and that the agent and servant of the defendant operated the automobile so negligently and recklessly that it collided with the plaintiff and inflicted the injuries in question, when by the exercise of reasonable care the said servant of the defendant might have avoided the accident, then you are justified in finding that the defendant was negligent."
This request is adapted to explain the doctrine of intervening negligence, if the evidence in the case justified its application. It is not claimed by plaintiff in his argument or brief that this doctrine is necessarily involved, and certainly it is not clearly indicated by anything in the record. In their brief plaintiff's counsel say that it is unnecessary " to label it as the doctrine of last clear chance," referring to their claim as to the situation involved, but that the instruction was appropriate as a general statement of defendant's duty to use due care. If this is all that is claimed for this instruction, the court clearly did not err in omitting to give it, for the jury was carefully instructed in the charge upon the question of due care.
Under this head it is further urged that the court made " disparaging remarks of the plaintiff's case" when it said:
It is perfectly clear that the court is here reciting the testimony of the defendant and his claim in connection therewith, a proceeding entirely correct and necessary for the proper instruction of the jury. That a defendant's testimony should disparage the claim of a plaintiff is not unusual, and any discredit arising from the situation certainly is not created by the court's recital of the testimony.
But the plaintiff further insists that there is nothing in the claimed proof of the defendant that warranted the discussion of the evidence just quoted. This is not the case, since in paragraph 8 of the finding the court states that--
Defendant claimed to have proved that the driver " kept a proper lookout, gave proper warning, operated the automobile at not to exceed five miles per hour while going uphill on Pleasant street and up Olive street where the grade is very steep, and that he did not run over or injure said child."
But this discussion of evidence by the court is also justified by a paragraph 4 in the plaintiff's claimed proof, in which it is stated that--
The driver drove the car " down Pleasant street in a southerly direction, and when it reached the middle of Olive street turned sharply to the left at a high rate of speed, and there knocked down and ran over the plaintiff, and passed on as quickly as possible up Olive street and into Oak street."
The charge of the court upon this point was identical in purport with that requested, in almost the same words, and entirely correct. The specific objection is that in the court's charge this item was preceded by a general statement of the duty of a plaintiff himself to use the care of an ordinarily prudent person as a prerequisite to recovery and thus weakened the effect of the reference to immature persons. To some such statement the defendant was entitled as a definition of a cause of action founded on negligence, and the further appropriate statement of the application of the rule to children of immature years, immediately following, emphasized this factor of the situation rather than weakened its effect.
The fifth request of the plaintiff is concerned with the right of plaintiff to cross the street when no car was near, whether plaintiff would have been apt to see the car as it came down Pleasant street, and that, even if the plaintiff was negligent in crossing the street when he did, his negligence must have been such as to essentially contribute to the accident, and that if the driver knew, or in the exercise of reasonable care should have known, that plaintiff was crossing and could have avoided the collision, plaintiff might still recover.
This, of course, is a statement of the doctrine of proximate cause, and this topic was clearly presented in the court's charge, so that plaintiff had the full benefit of it in connection with the evidence.
The sixth request to charge is...
To continue reading
Request your trial
-
State v. Stankowski
...State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); State v. Orlando, supra, 115 Conn. 675, 163 A. 256; Kuczon v. Tomkievicz, 100 Conn. 560, 572-73, 124 A. 226 (1924). "In determining the competency of child witnesses, age is not the decisive factor. See Kuczon v. Tomkievicz, supra, ......
-
State v. Piskorski
...and ability to appreciate the moral duty to tell the truth. State v. Segerberg, 131 Conn. 546, 547, 41 A.2d 101; Kuczon v. Tomkievicz, 100 Conn. 560, 570, 124 A. 226.' State v. Manning, 162 Conn. 112, 115, 291 A.2d 750, 752, 753; see McCormick, Evidence (2d Ed.) § 62." State v. Siberon, 166......
-
State v. Rodriguez
...State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); State v. Orlando, supra, 115 Conn. 675, 163 A. 256; Kuczon v. Tomkievicz, 100 Conn. 560, 572-73, 124 A. 226 (1924). In determining the competency of child witnesses, age is not the decisive factor. See Kuczon v. Tomkievicz, supra, 1......
-
State v. Paolella
...State v. Siberon, 166 Conn. 455, 457, 352 A.2d 285 (1974); State v. Orlando, supra, 115 Conn. 672, 163 A. 256; Kuczon v. Tomkievicz, 100 Conn. 560, 572-73, 124 A. 226 (1924)." State v. Rodriguez, 180 Conn. 382, 388-89, 429 A.2d 919 (1980); State v. Valeriano, 191 Conn. 659, 665, 468 A.2d 93......