Mazzucco v. Krall Coal & Oil Co., Inc.

• Decision Date: 08 February 1977
• Citation: 374 A.2d 1047,172 Conn. 355
• Court: Connecticut Supreme Court
• Parties: Charles MAZZUCCO v. KRALL COAL AND OIL COMPANY, INC., et al.

Page 1047

374 A.2d 1047

172 Conn. 355

Charles MAZZUCCO v. KRALL COAL AND OIL COMPANY, INC., et al.

Supreme Court of Connecticut.

Argued Dec. 8, 1976.

Decided Feb. 8, 1977.

David E. Schancupp, New Haven, for appellants (defendants).

William F. Tiernan, Jr., New Haven, for appellee (plaintiff).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

This action was brought by the plaintiff to recover damages for personal injuries sustained on December 12, 1968, when the plaintiff fell into a grease pit in a garage owned by the defendant Krall Coal and Oil Co., Inc., hereinafter Krall. The plaintiff successfully claimed before a jury that his fall and the resultant injuries were caused by the failure of the defendant Pellegrino, who was acting as the agent of the defendant Krall, to warn the plaintiff of the existence of the pit. The plaintiff was awarded $9000 damages. The defendants have appealed the judgment and have assigned four errors in the court's charge to the jury.

There was evidence from which the jury could have found the following facts: On December 12, 1968, the defendant Pellegrino summoned the plaintiff, who was in the business of towing and repairing motor vehicles, to the Krall garage to remove Pellegrino's car. The garage contained an office and four service bays. Pellegrino's car, its front facing the back of the garage, was parked in the third bay and covered the grease pit. The area was lit by two fluorescent lights which Pellegrino claimed to have turned on before the men entered the service bay through the main door to bay three. Pellegrino directed the plaintiff to the right front of the car and the men with the aid of Pellegrino's assistant, David Geil, began to push the car out of the garage. After they had traveled a short distance Pellegrino looked up and realized that the plaintiff had fallen into the grease pit. The defendant Pellegrino concedes that, to the best of his knowledge, the plaintiff had never been in the garage before and had not been warned about the existence of the grease pit.

The defendants first assign error to the court's refusal to charge the jury on the duty to warn of the existence of the grease pit: "With regard to that claim, it is the law and I charge you that the defendants had no duty to warn the plaintiff, if you find that the plaintiff had actual knowledge of that condition or if you find that the defendants could reasonably assume that the plaintiff knew about that condition or would observe it by a reasonable use of his faculties and senses." It is the law of this state that a request to charge which is relevant to the issues of a case and which is an accurate statement of the law must be given. Penna v. Esposito, 154 Conn. 212, 214, 224 A.2d 536; Smith v. New Haven, 144 Conn. 126, 130, 127 A.2d 829. It is, however, also the law of this state that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. Smith v. New Haven, supra. Furthermore, "(i)t is a well-established rule that the charge to the jury must be read as a whole and that individual instructions are not to be judged in 'artificial isolation' from the overall charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368; State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147; Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536." State v. Crawford, 172 Conn. 65, 69, 372 A.2d 154. We find that the substance of the defendants' requested charge was presented to the jury in two ways. First, the court was careful to inform the jury that the defendants were not under an absolute duty to warn the plaintiff of the existence of the grease pit. The court presented the following issue to the jury: "Whether or not a reasonable prudent man would have warned or pointed out the pit to the plaintiff is for you to decide in the first part of this case." Later, when charging the jury on the issue of the defense of contributory negligence, the court clearly pointed out that the plaintiff had a duty to act as a reasonable and prudent man and "to be alert and aware of his surrounding circumstances." The court charged further: "A plaintiff has the same duty to exercise the care of an ordinary prudent person in protecting himself against dangers and to be watchful of his own surroundings and to use his senses and faculties to see the same thing that the ordinary prudent person would under similar circumstances, or reasonably should have known were present or were likely to be present of dangers." The court emphasized that if the plaintiff were negligent in falling into the grease pit, he could not recover. It is, therefore, apparent upon examination of the whole charge that the defendants' requested charge was given in substance.

The defendants next assign error in the court's refusal to charge the jury as follows: "The plaintiff had a duty to observe and appreciate danger or threatened danger and he is conclusively presumed to know and appreciate dangers which, under the same or similar circumstances, would have been known or appreciated by an ordinary prudent person." It is apparent from examination of the court's charge to the jury on the issue of contributory negligence that the defendants' only claim is that the court did not adopt the precise language of the defendants' request. The court explicitly...