Sizer v. City of Waterbury

• Decision Date: 16 April 1931
• Citation: 113 Conn. 145,154 A. 639
• Court: Connecticut Supreme Court
• Parties: SIZER v. CITY OF WATERBURY.

154 A. 639

SIZER v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

April 16, 1931

Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.

Action by Mary E. Sizer against the City of Waterbury for damages for injuries alleged to have been caused by the negligence of the defendant. The case was tried to a jury. Judgment for plaintiff, and defendant appeals.

No error.

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

Charles S. O'Connor and Edward J. McDonald, both of Waterbury, for appellant.

William K. Lawlor, of Waterbury, for appellee.

HAINES, J.

the plaintiff alleged that on the evening of December 21, 1927, while walking with due care on Huntington Avenue in Waterbury, she fell into a large and unguarded hole in the street, about fifteen feet deep, and received serious physical injuries, and that on December 24, 1927, she gave written notice of the injury to the city of Waterbury in accordance with the requirements of the statute. She asked for damages for her personal injuries and for loss of income resulting from the fall. The jury gave her a verdict of $5,000 and the defendant moved to set it aside as contrary to the law and the evidence and excessive, and, the motion being overruled, this appeal was taken.

The record contains fifty-six assignments of error, but in this court thirteen are waived. A long motion for correction of the finding occupies more than ten pages of the printed record. Its contents indicate an entire misconception of the proper procedure upon appeal in a jury case. Marks v. Dorkin, 104 Conn. 660, 662, 133 A. 915. As to several paragraphs of the finding, the motion alleges that facts are found without evidence; it contains recitals of what occurred at the trial, and comments and arguments regarding the findings in question as well as extracts from the evidence. Under the same date, the defendant filed a paper entitled " Exceptions" and attached thereto long excerpts from the evidence covering more than thirty printed pages of the record. These also contain many pages of arguments and remarks of counsel and discussion of rulings, as well as much other irrelevant matter. The exceptions are improperly taken " to the refusal of the court to correct" the finding, instead of to the finding. In denying the motion, the trial court pointed out that counsel had overlooked the distinction between a finding in a court trial and one in a trial to a jury. It could properly have added that counsel had misconceived the appellate procedure in several other respects. It should be understood that a long record thus made up-almost four hundred pages-in disregard and violation of our rules, not only results in uncertainty and confusion but involves a heavy expense in printing. Moreover, it imposes upon both the trial and the appellate court an unwarranted burden in attempting to deal with the questions involved. General Statutes, Rev. 1918, §§ 5829-5831; Practice Book, pp. 96-98, and cases cited.

Though this court would be justified in refusing to consider many of the questions thus defectively presented, we shall review them so far as possible and necessary, for the protection of the rights of the parties to the action.

The fifty-fifth assignment of error relates to the refusal of the trial court to correct the finding in six respects. It is sought to correct paragraphs 46 and 47 of subdivision I of the finding, but the excepts from the evidence cited in support of the motion show clearly that the plaintiff offered evidence as stated in both paragraphs, except that the date. " December 1927," seems to be erroneous. This, however, is of no importance to the question at issue and we disregard it. It is asked that paragraph 28 of the draft finding be added to the finding, and the evidence cited supports it. We accordingly add it to that portion of the finding, subdivision II, containing the statement of the defendant's evidence. It is sought also to correct subdivision IX, XII, and XVII of the finding and long citations of evidence are printed in support of the request, much of it irrelevant and unnecessary. The same criticism must be made of the evidence printed in support of other assignments of error covering thirty-three pages of the printed record. The attention of counsel is directed to what we have heretofore said concerning this practice. Dejon v. Smedley Co., 108 Conn. 659, 670, 671, 144 A. 473. A careful examination of the three subdivisions of the finding referred to satisfies us that they make a fair presentation of the questions at issue. Save for such slight changes as we have indicated, the finding must stand as prepared by the trial court.

There are twelve assignments of error for failure to charge as requested. The first three of these requests relate to the legal requirements of the notice prescribed by statute. An examination of the charge shows that it contains all that is material in these three requests, correctly and adequately stated. A court is not bound to follow a request exactly as made. If the charge is proper and adequate, that is sufficient. Fagerholm v. Neilson, 93 Conn. 380, 387, 106 A. 333: Radwick v. Goldstein, 90 Conn. 701, 706, 98 A. 583; Crotty v. Danburry, 79 Conn. 379, 385, 65 A. 147.

There are two requests obviously based upon the assumption that the negligence of some third party may have contributed to the plaintiff's injury. The failure of the trial court to define the legal situation created by such circumstances is fully justified by the fact that neither the pleadings nor the evidence, as disclosed by the finding, presented such an issue. A similar reason makes it unnecessary to say more of the next request (No. 11) concerning a lawful obstruction or physical modification of a public highway. The next two requests (Nos. 14 and 15) are not, in the main, germane to the issues as framed by the pleadings and the evidence. So far as they have any application, they are sufficiently covered by the charge.

Error is assigned for failure to charge as requested in paragraphs Nos. 31, 33, 34, and 35.

Paragraph No. 31 was, in effect, that the jury should exclude from their computation of damages, all pain, suffering, or other injury which was not proximately caused by the defendant's negligence and plaintiff's fall. Though this was not done, the court did explain at length the meaning of the term " proximate cause" and told the jury that the plaintiff was only entitled to compensation for such injuries as had been proximately caused by her fall and that the burden was upon her to support her claim by a fair preponderance of the evidence: that it was incumbent upon her to satisfy them that the negligence of the defendant was the proximate cause of the injuries for which she was seeking compensation. The jury were also told that the controlling idea in making up an award of damages was compensation for the injuries done to her by the negligence of the defendant, and that nothing should be awarded over and above just compensation. We are entitled to assume that the jury was composed of intelligent men, and it is difficult to see how they could, under these instructions, have awarded anything beyond what they found to be the proximate result of the fall. While more specific treatment in a charge upon this feature of a negligence action is desirable, we are satisfied the jury were sufficiently instructed to enable them to render a just verdict, and that no prejudice to the defendant resulted from the failure of the court to charge as requested in this paragraph.

Paragraph No. 33 was, in brief, that " loss of plaintiff's business and damage to her fur coat" should not be considered by the jury unless proved " in dollars and cents." The loss in value of a specific article like a coat is generally susceptible of such proof, but while this item is alleged as a loss, in the complaint, the record does not disclose that any claim was made for it in the evidence or otherwise at the trial. The claim was evidently abandoned. It would be incorrect to say that compensation for loss of plaintiff's business could not be given without proof in dollars and cents. Often such losses are not susceptible of such specific proof. The amount to be awarded in order to make just compensation often lies in the sound judgment of the jury, based upon such evidence as they have before them. It appears from the finding that there was evidence as to loss of the plaintiff's business, from which the jury could have determined the amount with reasonable certainty, and the charge upon this feature of the case was sufficient under the circumstances. Ball v. Pardy Const. Co., 108 Conn. 549, 551, 143 A. 855, 63 A.L.R. 139; C.J. vol. 17, pp. 795, 796.

Paragraph No. 34 was a statement of the respective functions of various city boards and officials in Waterbury under 12 Special Laws of 1895. p. 434. Under the circumstances of this case, these had no bearing upon the essential issues before the jury. the plaintiff had no concern with these matters. Her right of action was to be determined by the notices presented at the office of the city clerk.

Paragraph No. 35 was to the effect that notice to any other official or employee of the city, than the city clerk, was not legal notice to the city unless that officials or employee had a duty to perform in the matter of highways. No such issue was presented to the jury. The finding shows the evidence of the plaintiff was that these notices, upon which she relied, were handed in to the office of the city clerk and put in the hands of the assistant city clerk, and the action of the plaintiff, if established by evidence, was a sufficient compliance with the statute which required that notice must be " given...