Judges: Maltbie, Haines, Banks, Avery, Brown
Filed Date: 3/29/1932
Status: Precedential
Modified Date: 10/19/2024
The appellant assigns error in the refusal of the court to set aside the verdicts in favor of the plaintiffs; in refusing to charge the jury in some particulars as requested by the defendant, and also in the charge as delivered.
From the evidence, the jury might reasonably have found the following facts: May 2d 1930, the plaintiff Minelda Lange, a minor eight years of age, was alighting from a school bus then stationary and facing in a northeasterly direction upon the right-hand side of the Georgetown-Bethel Turnpike, a highway in the town of Redding. The bus was standing approximately opposite the home of the plaintiff, located on *Page 592 the northwest side of the road which, at this point, runs approximately southwest and northeast, and consists of a hard surface foundation of macadam, twenty-five feet in width, with shoulders five feet wide. From the plaintiff's house, the highway extends a distance of more than six hundred feet to the northeast in substantially a straight line. The plaintiff, before alighting from the bus, looked along the road to the northeast, and observed the defendant's automobile at a point in front of a neighbor's house, a distance of about six hundred feet. She then immediately alighted from the bus on the right-hand front side, and walked to the rear, and started directly across the road toward the driveway of her home, when she was struck by the left front part of the bumper and left headlight of defendant's automobile, and carried a distance of approximately twenty feet by the impact. The automobile, before stopping, proceeded a distance of some twenty to forty feet beyond the place where the body of the plaintiff had been carried. Prior to the collision, the defendant was driving in her La Salle sedan in a southwesterly direction on the highway, approaching the school bus. There were from ten to fifteen children in the bus, most of whom were talking. The windows were open and several children were looking out, or had their arms or hands projecting, so that the character of the vehicle and of its occupants could have been readily observed. At the time of the collision, defendant's hearing was substantially impaired. She failed to give any warning of the approach of her automobile by horn or other signal, failed to keep a proper lookout, failed to apply her brakes or reduce the speed of her car prior to the collision, and failed to have her vehicle under reasonable control.
Upon these facts, it is clearly a question to be decided *Page 593
by the jury whether or not the defendant was negligent in the operation of her automobile, and whether the plaintiff Minelda, considering her age, experience and judgment, was free from contributory negligence. Lederer v. Connecticut Co.,
The plaintiff Minelda sustained a fracture of her left arm, and a fracture and dislocation of the pelvis. Upon the trial, evidence was offered and the plaintiff claimed that there was a deformity of the pelvis whereby the right side of the pelvis was displaced upward about one half inch, so as to diminish the size of the pelvic outlet; and that this deformity was permanent and would interfere with normal childbirth when the plaintiff reached maturity.
It was the claim of the defendant that the condition of the arm and pelvis was aggravated by lack of proper medical treatment after the accident. The plaintiff Minette B. Lange was a believer in Christian Science and had brought her daughter, Minelda, up in the same belief. On the day of the accident, the mother called a medical practitioner who gave first-aid treatment, and advised the removal of the child to the Danbury Hospital. She was removed to the hospital on the same day, where efforts were made by the physicians to reduce the fracture, and a temporary splint was applied, and X-rays taken. The defendant claims that the mother then took the child home against the advice of the physicians; and that, thereafter, medical advice was not had for the child's injuries until May 15th, when a physician visited the plaintiffs on behalf of the defendant and recommended *Page 594 that medical and surgical treatment be secured immediately, but that such medical and surgical treatment was not obtained until May 27th, when Minelda was taken to New York for X-ray examination; and, thereafter, was treated by a surgeon. In substance, the claim of the defendant is that because of lack of surgical treatment from the day of the accident until May 27th, the plaintiff's injuries were aggravated; and that proper treatment by regular physicians and surgeons from the beginning would have affected a substantial cure of her injuries so that no permanent disability would have resulted therefrom.
On the other hand, the plaintiff Minelda Lange claims that she reasonable relied upon her mother to provide such curative agencies as the latter thought necessary; and the mother claimed that on the day of the accident, in addition to first-aid treatment by a regular surgeon, she secured the services of a surgical nurse and had Minelda's arm set by a qualified surgeon at the Danbury Hospital; that from the time of the accident to the time of the trial Minelda was cared for by a competent nurse, had frequent X-rays and treatments by a competent orthopedic surgeon, and between May 2d and May 25th was kept quiet and in bed at home; that no other treatment was suggested by the surgeons nor was she ever informed that further surgical treatments would be useful until the defendant's physician so recommended about May 21st; after which, and as soon as possible, the services of a competent orthopedist and a competent X-ray specialist were engaged on behalf of her daughter.
In view of these claims, the defendant in six of her requests for instructions asked the court to inform the jury as to the duty of one injured to exercise ordinary care to cure and restore herself, and assigns error in the charge as delivered upon this subject. The defendant *Page 595
was undoubtedly entitled to have the jury instructed upon this phase of the case. We think, however, the charge as delivered covered the substance of defendant's requests so far as they were proper. That the exact language of the requests, some of which were taken verbatim from reported cases and textbook writers, was not employed, affords the defendant no ground of complaint. The court is not required to use the exact language with which a party clothes a pertinent request to charge. Daniels v. Grand 5, 10and 25-Cents Stores, Inc.,
The charge of the court is to be tested by the situation *Page 596
disclosed by the claims of proof. Minelda was a child eight years of age, and even if there had been neglect of proper surgical treatment by her mother, the negligence of the parent would not be imputable to the child. Daley v. Norwich W. R. Co.,
The jury were told that the conduct of both plaintiffs with reference to the presence or absence of reasonable care was to be judged in the light of all the surrounding circumstances including whatever belief as to the methods of treatment the jury might have found they conscientiously held. The reference in the last clause of this charge was to the fact that the plaintiff Minette B. Lange was a Christian Scientist and her conduct in the effort to promote the recovery of her daughter was in part at least actuated by the tenets of that belief. While the test of conduct on the part of a plaintiff in promoting a recovery *Page 597 from injuries suffered is one of reasonable care and cannot be made to depend upon the idiosyncrasies of personal belief no matter how honestly held, courts cannot disregard theories as to proper curative methods, held by a large number of reasonable and intelligent people. Reading the charge in the light of the facts claimed to have been proved, it went no farther than saying that in determining whether the plaintiff Minette B. Lange exercised a reasonable degree of care, the jury were entitled to consider, with all the other evidence, her conduct in the light of her belief in the doctrines of the Christian Science Church and the extent to which she acted in accordance with them. This was as favorable a charge to the defendant as she was entitled to have upon this feature of the case.
The defendant further complains that the charge was inadequate in that it did not sufficiently explain to the jury the effect which negligence on the part of the mother in failing to afford proper surgical treatment to her daughter might have as an intervening cause which would relieve the defendant from liability for such part of her injuries as would otherwise have been avoided. In Morro v. Brockett,
There is no error.
In this opinion the other judges concurred.
Flint v. Connecticut Hassam Paving Co. ( 1918 )
Lederer v. Connecticut Co. ( 1920 )
Daniels v. F. & W. Grand 5, 10 and 25-Cent Stores, Inc. ( 1923 )
Ross v. City of Stamford ( 1914 )
Walker v. New Haven Hotel Co. ( 1920 )
Murphy v. Derby Street Railway Co. ( 1900 )
Rappa v. Connecticut Co. ( 1921 )
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Christiansen v. Hollings ( 1941 )
Francis Ex Rel. Goodridge v. Dahl ( 2005 )
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Main v. Roth, No. Cv 93-0458686s (May 16, 1995) ( 1995 )
Wheatley Ex Rel. Wheatley v. Heideman ( 1960 )
Hoyt v. Factory Mutual Liability Insurance ( 1935 )