Worden v. Francis

• Decision Date: 26 April 1966
• Court: Connecticut Supreme Court
• Parties: John WORDEN v. Joseph FRANCIS.

Page 442

219 A.2d 442

153 Conn. 578

John WORDEN v. Joseph FRANCIS.

Supreme Court of Connecticut.

April 26, 1966.

Vincent J. Giedraitis, Hartford, for appellant (defendant).

Joseph J. Phelan, Waterbury, for appellee (plaintiff).

Before KING, C.J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

ALCORN, Associate Justice.

This appeal arises from a second trial of this case following our decision in Worden v. Francis, 148 Conn. 459, 172 A.2d 196. The basic facts are stated in that decision. The record before us indicates that the evidence introduced by both sides in the second trial was substantially the same as the evidence offered in the first trial. Consequently, our reference to the facts here is limited to those pertinent to the assigned errors which we find to be decisive of this appeal.

In the second trial a substantial verdict was again rendered for the plaintiff. The defendant has appealed from the ensuing judgment, assigning error in the charge and in numerous rulings on evidence. The few corrections sought in the finding which have not been abandoned are not material to the assignments of error in the charge, which we consider to be conclusive.

The court was undoubtedly faced with an unusual and difficult situation in that the defendant, although he was represented by counsel during the trial, was permitted personally to participate extensively in the conduct of his own defense. We note also the desirability of ending this lengthy litigation if, in justice to the parties, that result may be accomplished. Nevertheless, we subordinate all such considerations to the vital question whether the charge fulfilled its primary purpose of assisting the jury to apply the law correctly to the facts which they might find to be established. Deutsch v. LaBonne, 111 Conn. 41, 44, 149 A. 244. In satisfying this purpose, the charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven. Crane v. Hartford-Connecticut Trust Co., 111 Conn. 313, 315, 149 A. 782. While the degree to which reference to the evidence may be called for lies largely in the discretion of the court; Corriveau v. Associated Realty Corporation, 122 Conn. 253, 256, 188 A. 436; an allusion to it is required sufficient to furnish a practical guide to the jury as to how the stated law is to be applied to the evidence before them. Schiesel v. S. Z. Poli Realty Co., 108 Conn. 115, 124, 142 A. 812; Laukaitis v. Klikna, 104 Conn. 355, 360, 132 A. 913; Crotty v. Town of Danbury, 79 Conn. 379, 385, 65 A. 147.

The plaintiff offered evidence to prove, and claimed to have proved, that he and three other boys went to the place where the defendant's road grader was parked. One of the boys climbed on the grader, and another approached the crank which was used to start the motor. The plaintiff stood in front of the right rear wheel. The boy near the crank stepped on the crank handle, and the engine started. The grader immediately moved forward, and its right rear wheel ran over the plaintiff's head.

The defendant offered evidence to prove, and claimed to have proved, that the plaintiff, while he was in the hospital following the accident, stated to an investigating police officer: 'Jimmy Birdsdall, Francis Robillard, Jimmy Costello, and myself, were playing down near my house when we decided to play with the road grader. Francis Robillard and Jimmy Costello got on the machine. Jimmy Birdsdall stepped on the crank and started the machine. I started to jump on and slipped and fell.'

The importance of the conflict between the two versions of the events is apparent in the light of the special defenses of contributory negligence and assumption of risk. If the jury were clearly to understand that evidential effect could be given to the estra-judicial statement, they might well have found a situation in which the plaintiff started to jump on the grader as it moved forward and, in so doing, slipped and fell under the wheel. Considering the fact that the statement was made close to the time of the event, while the testimony was given some eleven years thereafter, the proper treatment of the two was exceedingly important.

The defendant requested a charge on the subject of extrajudicial admissions. The request, while imperfectly phrased, was adequate to alert the court to that element in the case. The court did not adopt the language of the request but charged as follows: 'I should also say something to you about our rule as to admissions. An admission of a party to a suit, that is, a plaintiff or defendant, made out of court, is admissible in evidence, not as the equivalent of direct testimony of the declarant in respect to any fact in issue, but because conduct of a party in respect to matters in dispute, whether by act, speech or writing, which is inconsistent with the truth of any of his contentions in this trial, is a fact relevant to the issue involved in any such contention.' The defendant has assigned error in this portion of the charge.

While the court's instruction was a correct general definition of an admission, it was not related, in this or any other portion of...