Houghton v. City of New Haven

66 A. 509 | Conn. | 1907

The court's instructions embodied in its own language the substance of the first two requests to charge. They also contained a careful and correct statement of the law attempted to be covered by the third, in so far as was necessary for the proper guidance of the jury under the issues and upon the claims of the parties. The plaintiff was entitled to nothing more. State v. Rathbun,74 Conn. 524, 528, 51 A. 540; McGarry v. Healey,78 Conn. 365, 367, 62 A. 671.

The extract from the court's instructions as to the defendant's duty of maintenance is made a ground of appeal, for the reason that the statement embodied in it was inconsistent with the correct proposition that the defendant had resting upon it the duty of using reasonable care to keep both sidewalk and crosswalk alike in a reasonably safe condition, or at least was calculated to mislead the jury into the belief that the duty owed with respect to the crosswalk was something less than the true duty. The court, immediately before using the language criticised, had clearly stated the correct rule of duty. In the language which is now wrested from its context for criticism there is nothing inconsistent with that rule, nothing which is not literally true, and nothing which, considered in connection with its context, was susceptible of producing a false impression. The statements of the court in this connection were not only correct, but such as ought to have been made for a clear understanding on the part of the jury of the defendant's duty in the premises.

The observations of the court with respect to the alleged hole were well within its right of comment upon the evidence, as that right has been repeatedly defined by this court. Banks v. Connecticut Ry. Ltg. Co., 79 Conn. 116,122, 64 A. 14, and case there cited. The duty resting upon the court to see that evidence might not be misused, was in the present case emphasized by the fact that by reason of the date of the notice recovery could only be had upon proof of a defect in the structure of the highway, and by the fact that the question of the existence of such a defect was involved in difficulty and uncertainty by reason of the admitted presence of water and slush, and the claimed presence of underlying ice formations creating such irregularities in the crossing as may have existed at the time of the accident.

The complaint made in connection with these comments, that the court, in order to avoid the commission of error, was required to accompany them with a statement that notwithstanding what the court might say or think it was within their province alone to pass upon the evidence and determine what was thereby established, is not well founded. The right of the jury in this regard underlay all that was said to them, and was unmistakably suggested in all the court's instructions. Express statement could scarcely have made the matter more clear. It is inconceivable that the jury, after hearing the charge, could have gone to their deliberations with a false conception of their power or duty.

There is no error.

In this opinion the other judges concurred.