DocketNumber: File No. CV 4-611-60
Citation Numbers: 184 A.2d 179, 23 Conn. Super. Ct. 435, 23 Conn. Supp. 435, 1 Conn. Cir. Ct. 296, 1962 Conn. Cir. LEXIS 217
Judges: MacDONALD, J.
Filed Date: 5/2/1962
Status: Precedential
Modified Date: 7/5/2016
The plaintiffs brought this action to recover damages for injuries alleged to have been sustained as a result of the negligent operation of a motor vehicle owned by the defendant. The court rendered judgment for the defendant, and the plaintiffs have appealed, claiming that the court erred in concluding "that the plaintiffs did not sustain their burden of proof, as required, to establish by a fair preponderance of the evidence . . . (2) that the plaintiff Frenis, Jr. was not guilty of contributory negligence." The trial court's conclusions are set forth in a lengthy memorandum of decision which under our rules becomes part of the record on appeal. Cir. Ct. Rule 7.30.1. Contributory negligence was pleaded as an affirmative defense. The *Page 436 principal question raised before us is whether the trial court erred in concluding that the burden of proof on the issue of contributory negligence shifted to the plaintiffs.
"Certain fundamental rules must be kept in mind. In the first place [General Statutes §
An examination of the pleadings and of the facts which are set forth in detail in the court's memorandum of decision discloses no exceptional circumstances to warrant a departure from our rule that "[t]he fact of contributory negligence, sufficient in law to defeat a plaintiff, is . . . a part of the defendant's burden (or risk of non-persuasion)." Wigmore, op. cit., p. 372.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion TOSCANO and JACOBS, Js., concurred.