Duffy v. CarrollDuffy v. Carroll
The six-year-old plaintiff brought this action by his father as next friend to recover for personal injuries sustained in crossing the street when he was struck by the defendant’s automobile, which, it is alleged, was being negligently operated. The jury rendered a verdict of $2500 for the plaintiff and the defendant has appealed, assigning error in the denial of his motion to set aside the verdict and in the court’s allowance of certain questions by the plaintiff upon the voir dire.
The jury could have found these facts: Iranistan Avenue is a main thoroughfare in Bridgeport which runs in a general northerly and southerly direction. It is about forty feet wide where intersected from the east by Ridge Avenue. Both streets are tar surfaced, and a crosswalk designated by white lines extends from the southeasterly comer of the intersection to the westerly side of Iranistan Avenue. There is a grocery store on the southeasterly corner. Iranistan Avenue is straight and level and is posted with speed signs for twenty-five miles an hour. Many families with small children live in the vicinity.
At about 2 o’clock on the afternoon of September 15,
There was evidence that these elements of damage resulted: The plaintiff suffered contusions and abrasions, including a good deal of torn and abrased skin on both sides of his chest, two lacerations on his back where the skin was torn, extending down into the muscle tissue one-third of an inch in depth, and a laceration of the lip. An x-ray examination was negative. He made a good recovery. His lip was sutured. He suffered very considerable pain and was confined to the hospital for seven days. One of the lacerations left a permanent scar with a shiny black surface an inch
By an amendment of his assignment of errors the defendant complains of this single paragraph of the finding: “48. On account of the time he lost from school, he was kept back and had to repeat the first grade.” This claim of proof is entirely immaterial upon the issues presented on this appeal, where there is no error assigned in the court’s charge to 'the jury. The defendant argues that the loss of a year in school constitutes speciál damage and since this was not alleged in the complaint the inclusion of it in the jury’s award as an element of damage vitiates the verdict. Whether or not it is an item of special damage we need not consider. The only evidence
concerning
it was brought out on the defendant’s cross-examination of the plaintiff’s father, which elicited this answer: “{The plaintiff} is still in the first grade. He failed on account of the time he lost in school — he was kept back on account of that loss of time.” The defendant did not move to strike out the answer. Neither did he make any request to charge or to submit an interrogatory concerning this as an element of damage. It was in no way referred to by the court in its charge and the defendant
The remaining question is whether the court erred in its rulings upon certain questions addressed, during the selection of the jury, to seven of the twelve jurors who eventually sat on the case. The attorney for the defendant claimed that in examining the veniremen counsel should avoid going into the question “what the law is for a 6 year old boy,” because that should be left to the court to cover in its charge. Each of the seven veniremen was asked by the plaintiff’s counsel: “Do you feel that a six year old boy is expected to use as much care and caution in crossing a street as an adult person twenty-one years of age?” In each instance the objection made was overruled and exception noted for the defendant. Six of the seven answered in the negative. Before the seventh answered, upon the continuation of his examination, the following ensued: “Question — It becomes important in this case, for this reason: the evidence will disclose a six year old boy, while crossing the street, was struck by an automobile, and one of the questions that will arise is the degree of care that the boy should use. Now, do you feel that you would expect him to use the same degree of care in crossing the street that you would expect from a person over 21? Answer — No. Question — In other words, you appreciate there is a difference between the standards of care? Answer — Yes. Question — Would you follow the Judge’s definition of what the care should be from a six year old boy? Answer — Yes.” Later,
Section 7908 of the General Statutes entitles either party to the action to examine each juror as to (1) his qualifications to sit as a juror therein, (2) his interest in the subject matter thereof, and (3) his relations with the parties. The purpose of such an examination is twofold. First, it provides information upon which the presiding judge may decide which of the prospective jurors, if any, he should excuse for cause. Secondly, it informs counsel as to matters which may influence them in the exercise of their right to peremptory challenges. “The extent to which parties should be allowed to go in examining jurors as to their qualifications is a matter largely resting in the sound discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where harmful prejudice appears to have been caused thereby.
State
v.
McGee,
The questions to which the defendant objected, however, did not call for a statement by the prospective jurors of what they thought the law was. Rather, they were designed to expose the jurors’ ideas of what they in their own minds would expect by way of care from a young boy as contrasted with an adult. The questions were calculated to disclose what the natural mental reactions of the jurors were and their abilities to discriminate. From the answers, counsel could gain impressions upon which he could decide whether he should exercise a peremptory challenge. For that reason it was within the discretion of the trial court to allow the questions. However, particularly in view of the existing congestion of the courts’ jury dockets and the apparently increasing resort by counsel to examinations on the voir dire, it is important that the trial courts, in the exercise of their discretion, be punctilious in restricting counsel’s inquiries to questions which are pertinent and proper for testing the capacity and competency of the juror;
State
v.
Cross,
In this opinion the other judges concurred.