48 A.2d 557 | Conn. | 1946
This is an action for damages for personal injuries sustained by the minor plaintiff when he fell while skating in the defendant's roller skating rink. The jury rendered a verdict for the defendant and the plaintiff has appealed from the denial of his motion to set the verdict aside and from the judgment. The material facts are not in dispute. On January 24, 1943, the defendant was engaged in the business of operating a public roller skating rink in a building in New Haven. On that afternoon the plaintiff, who was fifteen years of age and an experienced roller skater, went to the rink to skate, paid the admission fee of 30 cents and received a pair of skates from one of the *101 defendant's attendants. He presented them to another attendant, known as a "skate boy," who was employed by the defendant to fasten skates on the shoes of its customers. The boy fastened the skates to the plaintiff's shoes, making use of a strap at the heel and a screw clamp at the toe. After the plaintiff had skated for about half an hour he noticed that the right skate appeared to be loose and returned to the "skate boy," who tightened it. The plaintiff resumed skating. A few minutes later the right skate came off at the toe and he fell, breaking his arm.
The plaintiff has assigned error in the court's charge upon the doctrine of res ipsa loquitur, claiming that under a proper application of this principle the jury could have found that the defendant was negligent in failing to fasten the skate properly to the plaintiff's shoe. The three conditions affording a basis for the application of the doctrine in a case of this nature are: (1) the "apparatus `must be such that in the ordinary instance no' injury would result `unless from a careless construction, inspection or user; (2) both inspection and user must have been at the time of the injury in the control of the party charged with neglect; (3) the injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.'" Jump v. Ensign-Bickford Co.,
The plaintiff relies upon two cases in support of this claim, Killian v. Logan,
Here, on the contrary, it is manifest that in skating as he did the plaintiff by his own conduct voluntarily imposed a stress and strain upon the mechanical means used to attach the skate to his shoe as *103
well as upon the shoe itself, which was behavior likely to affect the security of the fastening, and that the defendant's ability to control those means had then been terminated. Therefore the difference in the factual situation renders the two above decisions relied upon by the plaintiff inapplicable. The same is true of Fogarty v. M. J. Beuchler Son, Inc.,
The plaintiff has also assigned error in the court's denial of his motions for a mistrial and to set aside the verdict. The ground relied upon in each was the racial prejudice claimed to have been indicated *104 by one of the jurors. During a recess in the trial, a juror, outside of the jury room, in the course of a discussion of the war made a very disparaging remark to another juror as to the race to which the latter, as well as counsel for the plaintiff, belonged. The juror to whom the remark was made repeated it to others on the panel. The court upon learning of it immediately informed counsel and they discussed it with the court. The plaintiff filed his motion for a mistrial prior to the arguments. Subsequently, he filed a motion that the verdict be set aside on the same ground. Both motions were denied by the court. The court has found that it was not indicated that any reference was made to the case on trial or to any person concerned therein, and that nothing occurred during the trial in any way indicating any prejudice or bias against anyone connected therewith, either as counsel or litigant.
The gist of the plaintiff's claim is that the court erred in denying the motions because the juror's remark evidenced that she had "such a warped mind [that she] could not possibly be impartial in a matter where one of the race concerning which she had such a viewpoint was involved." He further argues that "such verdict rendered by a jury so tainted, should not stand." The trial court's action upon the motions is not reviewable by this court as to either unless the record shows an abuse of discretion, and in order for us to hold its rulings erroneous "there must appear to have been prejudice to the unsuccessful party, or at least the probability of it." Burns v. State,
There is no error.
In this opinion the other judges concurred