Tuckel v. City of Hartford

• Decision Date: 06 April 1934
• Citation: 118 Conn. 334,172 A. 222
• Court: Connecticut Supreme Court
• Parties: TUCKEL v. CITY OF HARTFORD.

172 A. 222

118 Conn. 334

TUCKEL v. CITY OF HARTFORD.

Supreme Court of Errors of Connecticut.

April 6, 1934

Appeal from Superior Court, Hartford County; Varl Foster, Judge.

Action by Bessie Tuckel against the City of Hartford for damages for injuries from a fall alleged to have resulted from a defective sidewalk, tried to a jury. Verdict and judgment for the defendant, and the plaintiff appealed.

Error and new trial ordered.

Jacob Schwolsky, of Hartford, for appellant.

Dennis P. O'Connor, of Hartford, for appellee.

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

HAINES, Judge.

In the late afternoon of December 19, 1932, the plaintiff slipped and fell upon the sidewalk on the south side of Westbourne Parkway in the city of Hartford, in front of the house known as No. 140, causing her serious injuries. She alleged that the fall was caused by the defective condition of the sidewalk, which was covered with ice at that point. Appealing from a judgment for the defendant, she claims the trial court erred in its refusal to incorporate in the finding at least thirty-five paragraphs of her draft finding and, in support of this, offers various transcripts of evidence. These paragraphs relate chiefly to observations of her witnesses as to the condition of the walk on the day of the fall and during the preceding week. The finding in a jury case is not a determination of facts as such, but only a statement in narrative form of the evidence which the party offered, and his claims of proof made to enable him to present to this court the claimed errors in the charge and rulings of the trial court. Peterson v. Mechan, 116 Conn. 150, 153, 154, 163 A. 757. While such finding need not be complete in every detail, it should be sufficiently so that the claimed errors in the charge and rulings may be fully presented. Weiz v. Manzillo, 113 Conn. 674, 677, 155 A. 841. We have said: " A trial court is rarely justified in failing to find facts which have been proven and which a party asks to have incorporated in the finding merely because it deems them immaterial. State v. Pisano, 107 Conn. 630, 631, 141 A. 660. Counsel may regard them as material to the claims of law they desire to present to this court, and a failure to find them often results in unnecessary applications to this court for corrections of the finding." Bridgeport Airport, Inc., v. Title Guaranty & Trust Co., 111 Conn. 537, 543, 150 A. 509, 511, 71 A.L.R. 345. While this was said of court cases, the same reasoning also applies to a jury case like the present. To properly consider the various exceptions taken to the charge, we find it necessary in several instances to add to the finding, paragraphs from the draft finding. Errors are also claimed in the finding as made, and are supported by certified evidence. We shall refer to such changes in the finding as may be necessary in considering the specific claims concerning the charge.

We observe that in arguing the numerous exceptions to the charge, the briefs of both parties erroneously refer to the transcripts of evidence to support their claims. As we have had frequent occasion to point out, the validity of a charge must be tested by the finding and by that alone.

The first exception is to the following comment upon the plaintiff's personal testimony: " Consider her testimony with care. She testifies, in substance, I was walking on the street and fell. It was slippery and then I fell." There is no statement made by the plaintiff that she fell on any particular strip or patch of ice so far as I remember, but when I quote or refer to evidence you will rely upon your own memory and not upon my memory as to the evidence or statements of facts. In one part of her testimony she states that it was slippery. Again she says, ‘ I looked at the sidewalk and saw no ice.’ Again she says, ‘ I fell on snow covered with ice.’ In her complaint she says: ‘ The sidewalk on which [the plaintiff] fell was part of the highway known as Westbourne Parkway and said defective condition was brought about by having ice covering the same.’ She testified she fell near a tree. There are several trees near that sidewalk. Bearing in mind that the plaintiff can only recover a verdict resting upon the allegations of her complaint, you must determine whether she has proved by a fair preponderance of the evidence that the highway was in a defective condition brought about by having ice covering the same." The criticism of this statement is that it is argumentative and unduly favorable to the defendant, and that this is emphasized by the further charge: " The burden is upon the plaintiff to prove by a fair preponderance of the evidence that she fell by reason of the defect in the highway set forth in her complaint. Has she done this? If she slipped on snow or fell by reason of a defect in the highway not set forth in the complaint, your verdict must be in favor of the defendant." Reference to the amended finding shows no evidence of any other defect than that of the ice upon which she fell. She testified that she fell on the ice which was near the tree in front of No. 140, and that as she lay on the walk she noticed her feet near that tree. The location of this ice near this particular tree was supported also by the testimony of other witnesses as shown by paragraphs of the draft finding which was add to the finding. We cannot avoid concurrence with the appellant's criticism of this portion of the charge, and her claim that it was likely to be misleading even though the jury were told it was their duty to recall the evidence, Sullivan v. Nesbit, 97 Conn. 474, 479, 117 A. 502.

The jury was further told that: " The plaintiff had the legal right to use the sidewalk in question, but it was her duty to use reasonable care in such use to save herself from harm. It was her duty to use her eyes, her judgment, all of her senses,...