105 A. 354 | Conn. | 1918
The court did not err in charging the jury, in substance, that the defendant was not, as a matter of law, required by §§ 1534 and 1538 of the General Statutes, to reduce his speed or blow his horn, under the circumstances of this case; but that the question for the jury to consider was whether, in the exercise of reasonable care, he ought to have done so. Nor was it error for the court to recall the jury and instruct them that the plaintiff could not recover for any act of negligence not set up in the complaint.
The third assignment of error, relating to that portion of the charge above quoted, seems to be well taken. *102 It is true, as the court points out, that the only importance of the alleged intoxication of the deceased was that, if true, it strengthened the probability of the defendant's claim that the plaintiff staggered out in front of the defendant's automobile. In that connection it was of great importance, and the court was in error in saying that the question was whether the plaintiff had shown the jury by a fair preponderance of evidence that the deceased was not intoxicated. Intoxication is not negligence per se, and it was therefore no part of the plaintiff's case to show that the deceased was not intoxicated at the time. Intoxication, in this case, was simply an alleged fact which the defendant sought to prove because it tended to confirm his version of the accident, and by attempting to prove it the defendant volunteered to prove it by a fair preponderance of all the evidence bearing on that particular fact.
There is error and a new trial is ordered.
In this opinion the other judges concurred.
