Morro v. Brockett

• Decision Date: 17 April 1929
• Citation: 109 Conn. 87,145 A. 659
• Court: Connecticut Supreme Court
• Parties: MORRO v. BROCKETT (TWO CASES).

145 A. 659

109 Conn. 87

MORRO v. BROCKETT (TWO CASES).

Supreme Court of Errors of Connecticut.

April 17, 1929

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

Actions by Frederick Morro, a minor, to recover for personal injuries, and by his mother, Mary Morro, to recover expenses alleged to have been caused by the negligence of defendant Hobart J. Brockett. The case was tried to a jury, and from a judgment in each case for plaintiff, defendant appeals. No error.

Ward Church, of New Haven, for appellant.

Harry L. Edlin and Alfred E. DeCapua, both of New Haven, for appellees.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and BROWN JJ.

HAINES, J.

The finding shows that the minor plaintiff was five years and two months old, and while crossing Hamilton avenue in New Haven on November 10, 1926, he was struck and injured by an automobile owned and driven by the defendant. The boy's leg was broken, and he suffered other injuries. He was at once removed to Grace Hospital in New Haven, where he remained under treatment until December 22, 1926, when he was taken to his home with his leg in a plaster cast and so remained till some time the following month when he was returned to the hospital. Finding, upon the removal of the plaster cast, that the junction of the leg bone was unsatisfactory, two surgeons broke up and reset the bone. The jury returned verdicts for $1,312 for the personal injuries, and $755 for expenses, and judgments were entered accordingly.

The assignments of error are the same in each case, viz.: In the charge as given and in the failure to charge as requested, upon the requirement of due care by the boy, and the failure to charge as requested concerning proof of proper surgical and medical attention to the boy.

The request to charge, upon the refusal of which the first error is assigned, recites certain circumstances conditionally, and adds that continuing to cross the street under such circumstances would constitute negligence on the part of an adult, and then states that it is for the jury to determine whether the boy should be held liable for " such negligence." It further adds that in determining what degree of negligence the boy should be held liable for, the jury should take into account the fact that he was attending school, that he lived on a much-traveled street, and also his general appearance, and the fact that, although he was in court and exhibited to the jury, he was not called to testify.

This request is not, to say the least, adapted to the issue to which it was directed. First stating what would be negligence in an adult, it leaves it to the jury to determine whether this boy could be guilty of the same negligence. He could not, as matter of law, be held to the same degree of care as an adult, in any event. Moreover, though the request was directed to the issue of contributory negligence, it does not limit his liability to such negligence as contributed directly, materially, and essentially to the injury. The facts referred to in the latter portion of this request are but part of those before the jury, and are not by themselves at all sufficient to determine the question. Moreover, it is difficult to see how the conduct of the child as regards contributory negligence could be affected by the fact that he did not testify in court. The request as a whole would rather have misled than assisted the jury, and was properly refused.

On the question of due care by this boy, the court closes his statement to the jury as follows: " A child five years of age is not, and should not be, expected to have much judgment or be able to exercise any substantial degree of care; and therefore I apprehend that you will have little difficulty with the question of contributory negligence in these cases." Neither in these words nor anywhere in the charge is a correct statement given of what ordinary care in a child consists of, but no appeal has been taken from the statement of the rule as given by the court.

In Rutkowski v. Connecticut Light & Power Co., 100 Conn. 49, 53, 123 A. 25, we gave our approval to a charge in which the court, after a correct statement of our rule, used these words at the close of his remarks: " While I do not undertake to say to you as a matter of law that a child of the age of this plaintiff could not under any circumstances be guilty of contributory negligence, you probably will not have much difficulty in determining whether or not a child of five years of age, could be expected to have an appreciation of the danger involved in touching or coming in contact with a broken wire lying on the sidewalk because the same might be charged with electricity."

In so far as these words of the court may be considered as an expression of the court's opinion that the jury would have little difficulty with this question, it was not improper. A court may properly express his opinion in commenting upon the evidence to the jury, and his action will not be reviewed in the absence of an abuse of discretion. Di Bernardo v. Connecticut Co., 100 Conn. 612, 615, 124 A. 231; State v. Pinagglia, 99 Conn. 242, 244, 121 A. 473; Smith v. Hausdorf, 92 Conn. 579, 581, 103 A. 939.

In so far as the remark purports to state what the law does not require of a child of five years, it is the same in substance as the statement we approved in the Rutkowski Case, but it should be noted that in that case the remark followed a correct statement of the rule. There is some force in the claim made by counsel that the facts...