McQuillan v. Willimantic Electric Light Co. , 70 Conn. 715 ( 1898 )

The record does not disclose that the plaintiff received any express instruction that it was unsafe for him, in order to support himself while at work upon the electric light pole, to throw his leg over one of the cross-arms. Evidence presented by the defendant showed that Doyle, who in behalf of the defendant instructed the plaintiff how to perform his duties, did not assume that position, but that the plaintiff at the time of his injury did. If the defendant knew that it was dangerous for a workman to so support himself by the cross-bar, the plaintiff should have been so informed, unless the danger was obvious. In the absence of such information, the court properly refused to charge the jury, as requested by the defendant, that the fact that the accident resulted from the use by the plaintiff of the cross-bar as a means of support, when it had not been so used by his instructor Doyle, would defeat a recovery by the plaintiff. The question was one of contributory negligence. The inquiry was, did the plaintiff exercise the care of a person of ordinary prudence, and not, did he perform the work in precisely the same manner that his instructor did. Throwing his leg over the cross-bar may have been a safer way to work than that adopted by Doyle; in fact one of the defendant's witnesses testified that the position taken by the plaintiff was the usual, and proper one.

The question of fact whether the plaintiff was in the employ of the defendant at the time of the accident, was by the charge of the court fairly and properly submitted to the jury in accordance with the provisions of § 1101 of the General Statutes, that the court "shall submit all questions of fact to the jury, with such observations on the evidence, for their information, as it may think proper, without any direction how they shall find the facts." The defendant complains because the court, in commenting upon the evidence upon this question, did not refer to the testimony of Miss Mc-Cullough. The court did not assume to state all the evidence which might have borne upon that point. The language of the court was that the evidence upon the subject rested "mainly" upon the testimony of Evans, and of the plaintiff and his brother. A judge in charging the jury is not required to review all the evidence which has been introduced, nor is it error to omit all comment upon the bearing and weight of the evidence. Cohen v.Pemberton, 53 Conn. 221, 235. The extent to which he should comment upon the evidence in submitting to the jury a question of fact, is within the fair discretion of the trial judge. Setchel v. Keigwin, 57 Conn. 473,478; State v. Duffy, ibid. 525, 529; Morehouse v. Remson, 59 id. 392, 401.

The dispute as to the authority of John McQuillan to employ the plaintiff, related mainly to what was said by Evans by telephone to the foreman McQuillan. There seems to have been no controversy at the trial concerning the message of Evans to Miss McCullough or its delivery to the foreman, or his reply to her when the message was delivered. There was no occasion for the court to call the attention of the jury to what was conceded by the parties and understood by the jury. Calkins v.Lockwood, 17 Conn. 154, 173.

There was no error in excluding the evidence offered by the defendant, that it was protected by insurance against loss from injuries sustained by its employees by such accidents. This evidence was offered "as tending to prove that Evans had no motive to testify untruthfully." Unless he knew that such insurance had been effected, the fact of its existence could have had no influence in his mind. No proof of knowledge was offered, nor was it claimed that the jury might infer it from his official connection with the company. The ruling was therefore correct, even if (as to which we express no opinion) the evidence would, under other circumstance, have been admissible. None of the reasons of appeal can be sustained.

There is no error.

In this opinion the other judges concurred.