Lucier v. Meriden-Wallingford Sand & Stone Co.

• Decision Date: 01 February 1966
• Docket Number: MERIDEN-WALLINGFORD
• Citation: 153 Conn. 422,216 A.2d 818
• Court: Connecticut Supreme Court
• Parties: Urban LUCIER, Administrator (ESTATE of Leonard O. LUCIER), et al. v.SAND AND STONE COMPANY, Inc., et al.

Page 818

216 A.2d 818

153 Conn. 422

Urban LUCIER, Administrator (ESTATE of Leonard O. LUCIER), et al. v. MERIDEN-WALLINGFORD SAND AND STONE COMPANY, Inc., et al.

Supreme Court of Connecticut.

Feb. 1, 1966.

Kevin T. Gormley, New Haven, with whom, on the brief, were Martin E. Gormley and Gerald P. Dwyer, New Haven, for appellant (named defendant).

Alexander Winnick, New Haven, with whom, on the brief, were Edward D. Winnick, Arnold M. Potash and David W. Skolnick, New Haven, for appellees (plaintiffs).

Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Associate Justice.

This action arose out of a fatal accident on March 18, 1962, when the named plaintiff's decedent, Leonard O. Lucier, who was operating a motorcycle on which the plaintiff Roger Gagnon was also riding, ran into a cable barrier maintained by the named defendant across its private road in Wallingford. Lucier died as a result of the collision, and Gagnon sustained injuries. From verdicts in favor of Gagnon and the administrator of Lucier's estate, the named defendant, hereinafter called the defendant, has appealed. Assignments of error relate to the court's refusal to include certain facts set forth in two paragraphs of the defendant's draft finding, claimed errors in the charge, the admission into evidence of a photograph, the denial of the defendant's motion to set aside the verdict as unsupported by the evidence and the denial of the defendant's motion for judgment notwithstanding the verdict.

We consider first the claimed errors relating to the finding and then those relating to the charge and the ruling on evidence, the latter two of which must be tested by the claims of proof in the finding. Shay v. St. Raphael Hospital, 152 Conn. 604, 605, 210 A.2d 664; Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 494, 208 A.2d 748.

In the exact language of the defendant's draft finding, the court found that the defendant had offered evidence to prove and claimed to have proved that the defendant had no knowledge of anyone operating a motorcycle on its private road anywhere near the cable, but it added the time limitation of 'on March 18, 1962.' There was evidence to support the requested finding without the time limitation, and the defendant is entitled to this correction of the finding.

Similarly, in the exact language of the defendant's draft finding, the court found that the defendant had offered evidence to prove and claimed to have proved that it is common practice for anyone in business, such as the defendant, to place a cable across a private road leading to its premises 'in order to keep out unauthorized people from entering its premises.' The defendant is entitled to the addition to the finding of its further claim of proof that it is also a common practice to use such a cable rather than a wooden gate or other device to reduce the danger of personal injury to the occupants of any vehicles running into the barrier.

On the finding as thus corrected we consider the claimed errors in the charge. The accident occurred about 2 p. m. on Sunday, March 18, 1962, on the defendant's private road, which extended between the termini of two public highways. The road was the means of access to the defendant's gravel processing plant, which was not open for business at that time. Under these circumstances a determination as to the legal status of the decedent and Gagnon at that specific time and place was material.

The court fully charged the jury on the tests to be applied to determine whether the injured persons were trespassers, invitees or licensees and included instructions relevant to the application of the 'misled invitee' doctrine under the rule of such cases as Mercier v. Naugatuck Fuel Co., 139 Conn. 521, 95 A.2d 263. See Restatement (Second), 2 Torts § 367. The court instructed them as to the duty which a landowner, such as the defendant, owed to persons in each of these capacities. While the defendant has generally attacked these portions of the charge, the crux of its objection is embodied in its claim that the charge did not sufficiently stress the significance of the fact that the accident occurred on a Sunday afternoon, when the defendant's plant was not open for business.

'The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170.' DeCarufel v. Colonial Trust Co., 143 Conn. 18, 20, 118 A.2d 798, 799. A charge must be read in its entirety; Salvatore v. Hayden, 144 Conn. 437, 442, 133 A.2d 622; and it is to be considered from the standpoint of its effect upon the jury in guiding them to a correct verdict. Kowal v. Archibald, 148 Conn. 125, 129, 167 A.2d 859. In its charge the court expressly reminded the jury that '[t]he basic claim of the plaintiffs in this case is that in the afternoon of Sunday, March 18th, 1962, Leonard Ovide Lucier was driving a motorcycle in a southerly direction on a roadway in the Town of Wallingford.' Repeatedly the charge reminded the jury that they were to consider all of the evidence in the case and the situation as they found it to be on the day in question. Read in its entirety, the charge was accurate in law, adapted to the issues and sufficient as a guide to the jury in reaching a correct verdict. D'Addario v. American Automobile Ins. Co., 142 Conn. 251, 254, 113 A.2d 361.

During the trial the plaintiffs offered as an exhibit three photographs of the body of the decedent which were taken at a funeral home. The defendant objected that they would tend to inflame the jury. The court excluded two of the proffered photographs but admitted one of them which clearly showed a long scar on the neck which the plaintiffs claimed resulted from the decedent's contact with the cable. The ruling came after a doctor who had examined the body at the funeral home testified that although he could verbally describe the scar, a description would not be as adequate as the actual photograph. We cannot say that the trial court abused its discretion in admitting the photograph ...