Walters v. Hansen ( 1923 )

Wheeler, C. J.

The defendants’ truck was being driven by their servant and agent from private property adjoining North Main Street in Waterbury, to the street, through an opening in the fence along the sidewalk of the street, made by the removal of a section of the fence. While driving through this opening the servant and agent drove the truck against this fence, causing a part of it to fall over and on to the sidewalk and against the plaintiff, knocking her down as she stood upon the sidewalk in the exercise of due care waiting for the truck to pass, and causing her injuries for which she seeks a recovery in this action.

The defendants’ motion to set aside the verdict as against the evidence, and as excessive, was properly denied.

The court was correct in charging, in effect, that if the jury found the plaintiff had proven by a fair preponderance of the evidence the ground of. negligence alleged in paragraph 4 (g) of the complaint, viz: “In driving said automobile truck against said fence, striking and knocking said fence against the plaintiff, throwing her to the ground' and causing her to be injured and damaged as specified in paragraph 3. ”, — the plaintiff would have sustained the burden of proving the defendants’ negligence. This ground was an independent ground of negligence and unconnected with the other alleged grounds of negligence. The defendants’ counsel argues that ground (g) is an alternate conclusion based upon the happening of one or more of these six grounds of negligence. There is no basis for such claim. The seven grounds of negligence alleged were particularly specified in response to defendants’ motion for a more specific statement, and are each separately stated grounds of negligence.

The other objection to this portion of the charge, that there was no evidence that the truck was driven against the fence, is refuted by reference to the facts claimed by the plaintiff to have been proved, and so found by the court. In considering the charge we cannot go to the evidence, but are confined to the finding of the facts claimed to have been proved by the parties. The refusal to set aside this verdict, necessarily included a finding that there was evidence justifying the jury in finding that the defendants’ agent did drive the truck against this fence.

Complaint is made of a part of the charge as to the defendants’ duty, as follows: “You will consider all of the evidence with reference to the opening in the fence through which the defendants’ servant was attempting to drive his car, its width, the condition of the ground, and all of the attending circumstances; the condition of the fence, and the possibility of people being upon the sidewalk at the point where she was attempting to cross, and require of him that degree of care in passing through an opening of that kind that an ordinarily prudent person would exercise under those circumstances. If the elements of danger there were greater than they are or might have been under ordinary circumstances, then you will hold him to that much greater degree of care, to constitute ordinary or reasonable care.” We find nothing erroneous in this. The last sentence might have been more clearly phrased. Its purpose was clear: to present to the jury the rule that ordinary care in a situation of danger would require greater care than in one free from danger, and the greater the danger the greater the care. We do not think the jury could have been misled, but ought to have obtained from the charge as a whole a clear conception of the defendants’ duty.

The first ground of the additional 'appeal, that the charge as a whole was inadequate and insufficient, cannot be considered. It violates óur rules, and has been so frequently criticised in our decisions that the profession should by this time understand the futility of making it a ground of appeal.

There is no error.

In this opinion the other judges concurred.