Chernov v. Blakeslee , 95 Conn. 617 ( 1921 )

The evidence shows that several children, including the seven-year old plaintiff, gathered about the defendants' steam roller while it was taking on water from a hydrant. When the operator was ready to start the machine, he warned the children to get out of the way and supposed they had done so. The plaintiff followed the machine, walking alongside of one of the large roller wheels, which concealed him from the operator, and after a time his foot was caught under it and crushed.

On the issues of negligence and contributory negligence, no question of law is presented by this testimony; and the jury might, and did decide, one or both of those issues adversely to the plaintiff.

On the issue of contributory negligence, the jury were fully and properly charged that they were to determine what degree of care might reasonably be expected of a boy of the age, judgment, mentality and experience of the plaintiff, and then to determine whether the plaintiff exercised such care.

On the question whether the defendants and their servant were in the exercise of due care, the fact that the street was closed to traffic was one of the circumstances which the jury might take into account. The evidence of that fact was admissible, and the charge of the court on that point correct.

The hospital record, except as to dates of admission and discharge, which were admitted, was not admissible as independent proof of the statements of fact contained therein. Jordan v. Apter, 93 Conn. 302, 105 A. 620. The court did not err in refusing to set aside the verdict for the defendant.

There is no error.