Walczak v. Daniel

• Decision Date: 18 July 1961
• Citation: 172 A.2d 915,148 Conn. 592
• Court: Connecticut Supreme Court
• Parties: John WALCZAK v. Charles DANIEL et al. Supreme Court of Errors of Connecticut

Page 915

172 A.2d 915

148 Conn. 592

John WALCZAK v. Charles DANIEL et al.

Supreme Court of Errors of Connecticut.

July 18, 1961.

John P. McKeon, Manchester, with whom, on the brief, were Morton E. Cole and Cyril Cole, Hartford, for the appellant (plaintiff).

William W. Sprague, Hartford, with whom was John R. FitzGerald, Manchester, for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and BORDON, JJ.

BORDON, Associate Justice.

This is an action to recover damages for injuries claimed to have been caused by the negligence of the defendants. The jury returned a verdict for the defendants, and from the judgment rendered thereon the plaintiff has appealed. Although there are four assignments of error, only two are pursued. The plaintiff claims error in the court's failure to charge the jury adequately on defective brakes and its refusal to allow the plaintiff the right to exercise a peremptory challenge on a juror already accepted but not yet sworn.

The complaint, among ten specifications of negligence, alleges that the defendants' vehicle was operated 'with defective or inadequate brakes' or that the operator 'failed to apply his brakes in time to avoid' the collision. The plaintiff claims to have offered evidence of defective brakes through the testimony of the defendant operator and the presence of skid marks for 121 feet. The defendants claim to have offered testimony that the brakes were in good condition prior to the accident and were damaged as a result of the collision. The court charged the jury that 'the operator of an automobile on the highway, must have [it] * * * under reasonable and proper control at all times, and when reasonable care requires, must reduce its speed or bring it to a stop or turn out to avoid colliding with a person or property of other persons on the highway,' and that the operator 'must make such reasonable use of his brakes as a reasonably prudent man would do under similar circumstances.' The plaintiff claims that this charge, in view of evidence indicating defective brakes, was inadequate to guide the jury to a proper consideration of the evidence.

Where, as here, a specific statute is involved, § 153 of the Practice Book requires that a 'written request to charge on the legal principle involved' be filed before the beginning of the arguments and that it contain 'a single proposition of law clearly and concisely stated.' The plaintiff did not file any request to charge, leaving it to the court to deal with the subject as it saw fit. Had the plaintiff desired particular reference to be made to a breach of the statute concerning adequate brakes (General Statutes, § 14-80[a]), he should have requested a specific charge on this issue. The request should have referred to the specific statute which he claimed was violated. What is required is a request to charge 'on the legal principle involved.' State v. McNamara, 128 Conn. 273, 275, 22 A.2d 10. The purpose of the requirements of § 153 is clear. They are intended to afford the court an opportunity to place the requests to charge in the charge in their proper relation to the rest of the charge. The court may restrict its charge to claims actually made on the trial. It is not required to deal specifically with those which might have been made. Syms v. Harmon, 134 Conn. 653, 656, 60 A.2d 166. It is for that reason that the rule contemplates that a request to charge will be given to the court before the commencement of the arguments. Antz v. Coppolo, 137 Conn. 69, 72, 75 A.2d 36. Such a request, seasonably filed, would have given the court in the present case an opportunity to consider the contents of the request and incorporate them in the charge. See Lowell v. Daly, 148 Conn. 266, 270, 169 A.2d 888; State v. McNamara, supra.

At the conclusion of the charge, the plaintiff excepted as follows: 'I heard no charge in relation to brakes, and if the Court didn't charge on that, I take exception.' The exception was meaningless in view of the court's discussion of the subject and was not in conformity with § 153 of the Practice Book, which requires that an exception 'shall state distinctly the matter objected to and the ground of objection.' See Maggi v. Mendillo, 147 Conn. 663, 669, 671, 165 A.2d 603; DeCarufel v. Colonial Trust Co., 143 Conn. 18, 20, 118 A.2d 798; Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170; Chapin v. Popilowski, 139 Conn. 84, 85, 90 A.2d 167; Ehrhard v. Taylor, 136 Conn. 13, 14, 68 A.2d 133; Albrecht v. Rubinstein, 135 Conn. 243, 246, 63 A.2d 158, 7 A.L.R.2d 1022; Greenwald v. Wire Rope Corporation of America, 131 Conn. 465, 470, 40 A.2d 748. Under the procedure which was followed here, the charge is not subject to review. The error claimed is 'as to the giving of, or the failure...