Sickmund v. Connecticut Co.

• Decision Date: 08 January 1937
• Citation: 122 Conn. 375,189 A. 876
• Court: Connecticut Supreme Court
• Parties: SICKMUND v. CONNECTICUT CO.

189 A. 876

122 Conn. 375

SICKMUND v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

January 8, 1937

Appeal from Court of Common Pleas New Haven County; Edward J. Finn Judge.

Action by Delia Sickmund against the Connecticut Company, to recover damages for personal injuries alleged to have been caused by defendant's negligence. From a judgment for plaintiff on a jury verdict in the court of common pleas, defendant appeals.

Error and new trial ordered.

James W. Cooper and Charles A. Watrous, both of New Haven, for appellant.

Michael A. Ciano and James E. McKnight, both of Waterbury for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

BROWN Judge.

In this action the plaintiff sued for damages for personal injuries claimed to have been sustained by her while a passenger on the defendant's bus, by a fall caused by the slipping of her foot on the bus step as she was getting on, due to the defendant's negligence in permitting this step to become worn and slippery, and in stopping the bus so tilted toward the plaintiff as to accentuate the hazard therefrom. The jury rendered a verdict for the plaintiff, which the court refused to set aside. From this ruling, and from the judgment, for claimed errors in the trial, the defendant appealed.

The first error assigned is the denial of the defendant's motion to set aside the verdict. In so far as the motion is predicated upon the lack of evidence sufficient to support the jury's finding that the defendant was negligent, it is without merit. The testimony of the plaintiff's witnesses as to the worn and slippery condition of this step, taken in connection with the photograph of it in evidence, and the view thereof had by the jury during the trial, together with the evidence that it was not safe for public use, presented for the jury's determination the question whether the defendant was negligent in permitting it to become defective. The motion is likewise without merit in so far as lack of evidence of freedom from contributory negligence upon the plaintiff's part is relied upon. Whether the plaintiff exercised due care under the circumstances was a question for the jury.

Another ground of the motion is that there is no evidence to support the jury's finding that the damages awarded were caused by the plaintiff's fall. It is undisputed that the plaintiff had been suffering with diabetes for several years before this accident on June 14, 1933; that the accident resulted in two small abrasions on her leg and the contusion of her knee; that on July 10, 1933, she sustained a burn on her head while having her hair treated; and that a very substantial part of the damage which she suffered subsequent to June 14, 1933, consisted of a diabetic upset, involving pain and disability, and necessitating medication, doctor's care, and hospitalization. To prove that this element of damage resulted from her fall, the plaintiff called Dr. Bizzozero and Dr. Kirschbaum, who treated her on July 19 or 20, 1933, and thereafter, primarily to alleviate her diabetic upset. Each expressed it as his opinion that upon her history as given by the plaintiff this upset was traceable to her injury on the bus, but on cross-examination stated that no head burn was included in this history, and that, without knowing the extent of the burn, he could not differentiate between the effect of the fall and of the burn upon the plaintiff's diabetic upset. Dr. Bizzozero stated a large head burn might cause such an upset. The only testimony as to the nature of the burn was that of the plaintiff, that it was a third degree burn, and of Dr. Morrill that from the history he thought it was a second degree burn and fairly extensive. Although the plaintiff and her witness Mrs. Lawlor testified they felt the fall affected the former's diabetic condition, apart from the testimony of Drs. Bizzozero and Kirschbaum, the only evidence that the fall, as distinguished from the burn, was the cause of the diabetic upset, was that to be inferred from the plaintiff's testimony that she was taken to the hospital for the pains in her leg and not because of the burn.

The testimony of Dr. Corbett who treated the plaintiff from June 14, 1933, to July 17, 1933, was undisputed to the effect that diabetes didn't affect the healing of her leg wounds, that aside from a trace which appeared twice he found no sugar in her urine, and that there was no acetone prior to July 10th, but that during the ensuing week the pain in her left leg and back became much worse, the plaintiff complained that she couldn't sleep at all, and at the end of the week her urine showed four-plus sugar, and she had acetone and diacetic acid. It was undisputed that these concomitants were all essentially involved in her diabetic upset.

The verdict in this case for $1,000 cannot be supported in the absence of evidence from which the jury could reasonably find that the plaintiff's fall on the bus caused her diabetic upset. The burden rested upon the plaintiff to prove this by sufficient evidence. Quackenbush v. Vallario, 114 Conn. 652, 657, 159 A. 893. As appears from the above reference to the only testimony upon this issue, she did not sustain this burden. The failure of Drs. Bizzozero and Kirschbaum in their opinion to take into account at all the burn as a causal factor, and their inability to differentiate between the effect upon the plaintiff's diabetic upset of the fall and a burn of the nature indicated by the undisputed evidence, renders their testimony insufficient. And this is the more apparent in view of the strong inference arising from Dr. Corbett's testimony that the burn has a very definite causal connection with the upset. Nor can the plaintiff's own testimony from which the fall, as distinguished from the burn, might be inferred as the cause satisfy the burden which was hers. This is because of our wel-established rule that " When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not suffice." Slimak v. Foster, 106 Conn. 366, 368, 138 A. 153, 154. This issue clearly falls within this rule. As we said in O'Meara v. Columbian National Life Ins. Co., 119 Conn. 641, 645, 178 A. 357, where the cause of a decedent's unconscious condition was in issue: " The effects upon the human system of diseases or injuries such as are here involved are not within the sphere of common knowledge. To understand such matters, the testimony of witnesses possessing special knowledge and skill in the sciences of medicine and surgery is required. Whether the injuries were of such character as in reasonable probability would have caused his unconsciousness presented a medical question requiring the testimony of men skilled in that profession. It was not permissible for the jury of laymen without such expert testimony to speculate as to the cause of his unconscious condition." The production of expert testimony to show the causal connection here was essential to the...