Mccarthy v. Maxon

• Citation: 55 A.2d 912,134 Conn. 170
• Court: Supreme Court of Connecticut
• Decision Date: 14 November 1947
• Parties: McCARTHY et al. v. MAXON et al.

134 Conn. 170

55 A.2d 912

McCARTHY et al.

v.MAXON et al.

Supreme Court of Errors of Connecticut.

Nov. 14, 1947.

Appeal from Superior Court, Hartford County; Comley, Judge.

Action by Ella McCarthy and husband against F. Irving Maxon and another for personal injuries, alleged to have been caused by defendants' negligence, to plaintiff wife as the result of falling down a stairway as she was leaving named defendant's office in codefendant's building. From a judgment on a jury's verdict for plaintiffs, defendants appeal.

Error, judgment set aside, and new trial ordered, unless plaintiff files a remittitur, and in such case judgment on the verdict as to the residue.

Arthur D. Weinstein and Joseph P. Kenny, both of Hartford (Julius B. Schatz, of Hartford, on the brief), for appellant (defendant Frank Ritvo).

Henry H. Hunt, of Hartford, for appellant (defendant F. Irving Maxon).

Robert L. Halloran, of Hartford, for appellees (plaintiffs).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

The plaintiff wife, hereinafter referred to as the plaintiff, was injured as the result of falling down a flight of stairs as she was leaving the office of the named defendant, a veterinarian. She and her husband brought suit against him, as tenant, and the owner, Frank Ritvo, and had verdicts. The defendants appealed, assigning as error the denial of their motions to set aside the verdicts, rulings on evidence and errors in the charge.

A detailed review of the extensive evidence would serve no useful purpose. The jury reasonably could have found these facts: The stairway was rather dark; the plaintiff, while in the exercise of due care, caught her heel in a defective rubber mat covering the top step at the stair landing and was precipitated down eight steps to the bottom, striking her head against the newel post. Both defendants had at least constructive notice of the defective condition of the stairs in time to have corrected it but failed to do so. The plaintiff hurt her leg, her back and her jaw and fractured her skull. She was in the hospital nine days, in bed at home without getting up for about six weeks. She then started to improve, and at the time of trial, over two years after the fall, her injuries had pretty well cleared up except that she still was troubled with pains in her head, because of which her activities were somewhat restricted. She does not claim in her brief, and there is no evidence, that her injuries are permanent. Her own statement was as follows: ‘Yes, I'm getting along good but I'm not all better yet.’

The respective responsibilities of the owner and tenant will be discussed in connection with the appeal from the judgment. In general, there was ample evidence to support the verdicts on liability. White v. Herbst, 128 Conn. 659, 25 A.2d 68. The claim of the defendants, pressed in their briefs, that they had proved the plaintiff guilty of contributory negligence is devoid of merit. The wife was awarded $9000. She had been working for about a year and a half before the accident, helping out in a war plant, but it is extremely problematical whether the jury would have been justified, on the evidence submitted, in making any substantial award for lost wages. Be that as it may, a majority of the court is convinced that the verdict is excessive and that a remittitur of $2000 should be ordered. DiLeo v. Dolinsky, 129 Conn. 203, 207, 27 A.2d 126.

This was a trial to the jury and the finding as made furnishes an adequate basis to test the claimed errors as to the charge. Doyle v. Reeves, 112 Conn. 521, 528, 152 A. 882. There were numerous exceptions to rulings on evidence but only five were pressed in the briefs.

A visiting nurse of twenty-five years' experience, who attended the plaintiff for a month, was asked the customary charge for the services rendered by the plaintiff's daughter in caring for the plaintiff, and she answered, ‘About five dollars a day.’ No reason was stated for the objection. Practice Book, § 158. In the absence of any statement of the ground of objection, we do not consider the ruling. Petrillo v. Kolbay, 116 Conn. 289, 395, 165 A. 346. The rule that the ground of objection should be stated also applies to the denial of a motion to strike out an answer of Maxon that Ritvo had his men make repairs. Two rulings relate to evidence of an agreement to repair made by Ritvo and of repairs made. The first was admissible as relevant to the claim that Ritvo had no reason to expect that Maxon would make the repairs, Corrigan v. Antupit, 131 Conn. 71, 74, 37 A.2d 697; and the second as evidence of control, Vinci v. O'Neill, 103 Conn. 647, 651, 131 A. 408. The written records of the Visiting Nurse Association were admitted under General Statutes, Cum.Sup.1935, § 1675c. They were made a part of the finding, and an examination of them shows that they were properly admitted under the rule stated in Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 100, 3 A.2d 224. The two entries in the report to which objection was particularly made-the name of the attending...