Smith v. Hausdorf

The action of the trial court in refusing to charge as requested, in the charge as given, and in its rulings upon the admission of evidence, were assigned as errors by the defendant. Eight of the assignments of error, relating to the refusal of the court below to charge as requested, were not pursued and may be treated as waived. By the ninth assignment, the plaintiff contends that the charge was insufficient in law for the guidance of the jury in reaching a verdict. This assignment is too general, and raises no question we are bound to consider. General Statutes, § 802. It may also be stated, in relation to this assignment, that the record discloses that the charge as it was given presented the issues raised by the pleadings in a plain, concise and proper manner, that the law relating to these issues was fully and correctly stated, and was amply sufficient for the guidance of the jury.

The principal contention of the plaintiff was that the charge was argumentative, that the court was unfair in its comments upon the evidence, and that in several parts of the charge, pointed out in the appeal, the judge usurped the province of the jury. It is well settled by this court that a judge in his charge to the jury may comment upon and express his opinion on the weight of the evidence, provided all questions of fact are left to the jury without any direction by the court as to how the same shall be determined. Upon this point it is only necessary for us to refer to two or three recent cases in which the comments of the court on matters of fact were more strongly expressed than in the present case. Dick v. Colonial Trust Co., 88 Conn. 93,89 A. 907; Temple v. Gilbert, 86 Conn. 335, 85 A. 380; Crotty v. Danbury, 79 Conn. 380, 65 A. 147. This power of comment is to be exercised at the discretion of the trial court, and its action will not be reviewed by us upon appeal unless such discretion has been abused. It appears from the record in the present case that the trial judge submitted all of the questions of fact to the jury without any direction as to how they should find the facts, and there is nothing to indicate any abuse of his discretion in his method of presenting the case to the jury.

A witness called by the plaintiff was asked if he told an Italian family that the stairs were bad, and the girl telephoned to the landlord. This was objected to and excluded. It is sufficient to justify this ruling that the question called for an answer which was plainly hearsay.

A doctor called by the plaintiff was asked if, when he first went to the plaintiff's house, he inquired of her as to the injuries she had received. This was objected to, and claimed by counsel for the plaintiff upon the ground that he wanted "to show what was the cause of the injury, if the lady told him at the time, just what produced the injury we are claiming damages for, we are entitled to it." This question was properly excluded. It called for the narration of a past event which was clearly objectionable as hearsay. McCarrick v. Kealy,70 Conn. 642, 645, 40 A. 603.

There was no error in the exclusion of a certain photograph of the stairway in question, offered in evidence by the plaintiff. The photographer who made it testified that after the accident he fixed up the broken stairway with boards that he found nearby, and then photographed these stairs as they then appeared. The sufficient verification of a photograph is a preliminary question of fact to be decided by the trial judge. Its value as evidence may depend upon extraneous circumstances.McGar v. Bristol, 71 Conn. 652, 42 A. 1000. Its accuracy must have been shown before it could have been properly admitted. From the facts disclosed by the record this was a matter for the trial court. We certainly cannot say that this photograph was a correct representation of these stairs at the time the plaintiff was injured. Cunningham v. Fair Haven WestvilleR. Co., 72 Conn. 244, 249, 250, 43 A. 1047.

There is no error.

In this opinion the other judges concurred.