Ashborn v. Town of Waterbury , 69 Conn. 217 ( 1897 )

Baldwin, J.

The trial judge, after charging the jury that the plaintiff was bound to prove by a fair preponderance of evidence both that the town was negligent in not maintaining a sufficient railing, and that he was injured while in the exercise of ordinary care, recapitulated the testimony at length, and then proceeded as follows:—

“ If you are satisfied that the plaintiff has failed to sustain his allegations of negligence on the part of the town, and the affirmative fact that the plaintiff was in the exercise of due care; if you are satisfied that he has not sustained that position by the weight of evidence, then you must find for the defendant. You must apply the same rule to the defendant that you do to the plaintiff. If you are satisfied that the plaintiff has sustained that position by a fair preponderance of the evidence, your verdict must be for the plaintiff. On the contrary, if you are satisfied that the defendant has in the evidence which he has adduced here shown that the town was not guilty of negligence, and even if it was, that the plaintiff was guilty of contributory negligence—if you are satisfied that the weight of evidence thus convinces you, then the verdict must be for the defendant.”

By these concluding remarks, the jury were told to apply the same rule to the defendant that they did to the plaintiff, and that they must find for the town, if satisfied that it had shown by the evidence which it had introduced, that it was not negligent, or that the plaintiff was. It is, of course, plain that the "defendant was not bound to prove anything, but was entitled to a verdict, if the plaintiff failed to establish his case by his own evidence. From the beginning to the end of the cause; the burden of showing its negligence and his own care rested on him. The parties were not, in this particular, subject to the same rule; and for this error a new trial must be granted. It is true that in other parts of the charge the burden of proof assumed by the plaintiff was distinctly and properly stated; but here, for the first time, the positions occupied by the parties were put in direct comparison, and the misconception of that belonging to the town related to a vital point, on which it is quite possible that the verdict turned. Button v. Frink, 51 Conn. 342, 350.

Dr. Axtelle, a witness for. the plaintiff, who had attended him professionally after the accident, was asked on cross-examination, what were the plaintiff’s habits with regard to temperance, before the accident, whether he had since that seen him intoxicated, and whether, in his opinion, the injuries received would be aggravated, if followed by an intemperate course of life. These questions were not germane to the direct examination, and were properly excluded. The time had not come for the defendant to open its case.

The other rulings on evidence were also correct; but it is unnecessary to discuss them, as the questions presented are not likely to recur on another trial.

There is error, and a new trial is ordered.

In this opinion the other judges concurred.