Miller v. Connecticut Co.

• Decision Date: 13 January 1931
• Citation: 152 A. 879,112 Conn. 476
• Court: Connecticut Supreme Court
• Parties: MILLER v. CONNECTICUT CO. et al.

152 A. 879

112 Conn. 476

MILLER v. CONNECTICUT CO. et al.

Supreme Court of Errors of Connecticut.

January 13, 1931

Appeal from Superior Court, New Haven County; Carl Foster, Judge.

Action by Jennie Miller against the Connecticut Company and another for damages for personal injuries alleged to have been caused by negligence of the defendants. Verdict and judgment for defendant Maloney and against the defendant the Connecticut Company, and court denied latter's motion to set aside the verdict, and it appeals.

Error and new trial ordered.

Charles A. Watrous and R. Blake Russell, both of New Haven for appellant.

Michael J. Quinn, John V. O'Brien, and Philip Troup, all of New Haven, for appellee.

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

HAINES, J.

The plaintiff was injured while riding as a passenger in a trolley car of the appellant then being operated on Dixwell avenue in New Haven, July 23, 1929. The car was in collision with an automobile which was being backed into the street by its driver, the defendant Amy D. Maloney. This action was heard upon the claimed negligence of both these defendants. The jury held the defendant Maloney free from blame and found the negligence of the motorman the proximate cause of the injury and gave the plaintiff a verdict against the defendant company. The appeal alleges errors on the part of the trial court in certain portions of the charge, in denial of requests to charge, in falling to submit an interrogatory, and in denying the motion to set aside the verdict as contrary to the evidence and the law and as excessive.

The court was requested to charge that " a motorman operating his car in a reasonable manner, has a right to assume that other users of the highway will use reasonable care for their own safety and will take reasonable means to inform themselves whether or not a car is dangerously near before going upon the track." In view of the conflicting evidence as to how the collision was caused, the principle involved in this request might well have been an important element in the deliberations of the jury. Though the request was not in an ideal form, it embodied an important rule of law in negligence actions, and we find nothing which covers this feature of the case in the charge as given. We cannot avoid the conclusion that the rights of the defendant may have been prejudiced by the omission and that it constitutes reversible error. Murphy v. Way, 107 Conn. 633, 639, 141 A. 858; Syssa v. Heminway, 106 Conn. 499, 501, 138 A. 223.

There are some other questions of importance raised by the present appeal, which may again arise upon a new trial, and we shall therefore make some reference to them.

The defendant requested a charge that " the plaintiff cannot recover damages for nervous shock except in so far as the nervous shock is the direct result of a physical injury." The complaint described various physical injuries claimed to have resulted from the collision, and then alleged that " because of said injuries the plaintiff has suffered physical and mental pains and had a complete nervous breakdown and will for a long time continue to suffer physical pains and will also suffer from a nervous condition." The trial court told the jury that if the verdict was for the plaintiff she should be allowed such damages as would fairly compensate her for the injuries she had alleged in her complaint and proved by a fair preponderance of the evidence. Then refering specifically to some of her claimed physical injuries, the court pointed out that some of the claimed consequences of such injuries had not been stated by her own physician to positively follow therefrom, and added the statement which the appellant now assigns as error: " If your verdict is in her favor you may allow her damages for such nervous condition as you find to be as a result of the negligence of one or both of the defendants, proved as I have charged you." Under these circumstances we are unable to see how the injury would have been misled to the detriment of the defendant. Seger v. Barkhamsted, 22 Conn. 290, 298; Swift v. Dickerman, 31 Conn. 285, 294; Masters v. Warren, 27 Conn. 293, 300; Gibney v. Lewis, 68 Conn. 393, 396, 35 A. 799; Maisenbacker v. Society Concordia, 71 Conn. 369, 377, 42 A. 67, 71 Am.St.Rep. 213; St. Martin v. New York, N.H. & H. R. Co., 89 Conn. 405, 408-410, 94 A. 279; Bushnell v. Bushnell; 103 Conn. 583, 594, 131 A. 432, 44 A.L.R. 785.

Another request which was refused related to the care required of a motorman in a sudden emergency. The request is defective in several respects, particularly in the opening and in the later portion: " In an emergency when a motorman has but a second or two to act. *** The question is whether in view of the nature and suddenness of his emergency you may find his conduct was that of a reasonably prudent man." These are mere assumptions of fact which might well have misled the jury if the charge were given in that form. If, as we think they should have been, the jury had been told that the motorman was entitled to assume that the defendant Maloney would obey the law and observe due care, some portions of the evidence, if believed by them, might have justified them in finding that the motorman was in fact confronted by a sudden emergency. In view of this possibility, the defendant was entitled to have the jury instructed as to the measure of the motorman's duty under...