Strong v. Carrier

• Decision Date: 14 February 1933
• Citation: 164 A. 501,116 Conn. 262
• Court: Connecticut Supreme Court
• Parties: STRONG v. CARRIER.

164 A. 501

116 Conn. 262

STRONG v. CARRIER.

Supreme Court of Errors of Connecticut.

February 14, 1933

Appeal from Court of Common Pleas, New Haven County; Miles F McNiff, Deputy Judge.

Action by William S. Strong against Wilfred J. Carrier to recover damages for personal injuries caused by defendant's negligence. There was a verdict and judgment for plaintiff and defendant appeals.

Error judgment set aside, and new trial ordered.

M Joseph Blumenfeld, of Hartford, for appellant.

Andrew D. Dawson, of Waterbury, for appellee.

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

MALTBIE, C.J.

The plaintiff brought this action for damages for injuries caused him by an automobile being driven by the defendant, and, from the judgment upon a verdict in favor of the former, the latter has appealed. The principal error claimed is that the trial court submitted to the jury the issue of the plaintiff's right to recover upon the ground of the defendant's supervening negligence. The complaint contained allegations of negligence of a kind which would afford a basis for a verdict for the plaintiff upon the ground of supervening negligence on his part, such as his failure to slow his car upon seeing the plaintiff in the street and to have it under proper control. The record bears out the defendant's contention that neither in the complaint nor on the trial did the plaintiff specifically invoke the doctrine. In Correnti v. Catino, 115 Conn. 213, 160 A. 892, we said that the trial court need not consider the doctrine nor charge the jury with reference to it unless the plaintiff's purpose to invoke it as an issue in the case is evidenced either by a definite reference to it in the complaint or by claiming it to the court upon the trial. It does not follow that, where the complaint presents the issue and the facts in evidence afford reasonable ground for its application, a trial court will be held in error in submitting the issue to the jury even though it was not invoked. As we have frequently pointed out, a trial judge is not an umpire in a forensic encounter of advocates, and he may and should submit to the jury any issue within the pleadings reasonably supported by the evidence produced which is necessary to secure justice between the parties. Error upon the part of the trial court in submitting the issue of supervening negligence to the jury in this case can only be predicated upon the failure of the facts claimed by the parties to have been proven to afford a reasonable basis upon which it could be found to exist. In that connection it may well be noted that the court did not have the advantage of our decision in the Correnti Case when this action was tried, because that decision had not then been handed down.

The plaintiff came out of a church upon the westerly side of Cherry street in Waterbury. The street is about thirty-three feet wide at this point. It was snowing or raining, and the street was wet. The plaintiff's automobile was parked on the opposite side of the street. He started to cross it, and the accident occurred before he had reached his car. Beyond these facts, the circumstances involved in the accident claimed to have been proven by the parties differ...