Walker v. New Haven Hotel Co. , 95 Conn. 231 ( 1920 )

If given weight and effect quite within the jury's right to accord it as sole judges of the facts, there was evidence which warranted the verdict, and the trial court properly refused to set it aside. The question of negligence, as the case was presented to them, was one for the jury to determine without interference from the court.

The rulings upon evidence disclose no error. Proof that the defendant was protected by insurance from pecuniary losses arising out of the conduct of its business, was wholly incompetent to establish any issue before the jury. The objection to such evidence in cases of this character is a fundamental one, and reaches deeper than its possibilities for working prejudicial mischief with the jury. The mere fact of insurance neither implies an expectation of loss, nor confesses knowledge of a situation likely to produce one. Nor does it acquire force or weight as evidence of negligence on the part of the insured by the happening of some event necessarily unforeseen when the contract was made, but in its nature within the general guarantee of indemnity.

The question asked each of the witnesses, Woodruff and Walker, whether he had ever before seen the rug "displaced and wrinkled," was clearly too broad for any proper purpose of the inquiry. No attempt was made to define the cause of any such displacement, or the conditions under which it came about, and without some such restriction to its scope, the question was inadmissible.

Whether or not the witness Woodruff had ever slipped upon the rug was without pertinence to the case upon which the plaintiff relied. The cause of her mishap, as disclosed by the court's statement of her claims upon the evidence, was in tripping upon the rug by catching a foot under it in her progress across the floor. That someone else at some other time may have "slipped" upon the same rug, was very clearly of no bearing upon the case presented.

Complaint is made because the court excluded the question asked of the two witnesses referred to, based upon their acquaintance with conditions at the place where the plaintiff was injured, and calling in each instance for an opinion whether the maintenance of the rug there was "a dangerous thing." It is unnecessary to determine whether the case was one which justified the introduction of nonexpert opinion evidence. If so, the court's rejection of it was harmless error, since the only basis for its admission as defined inSydleman v. Beckwith, 43 Conn. 9, 12, was wholly removed by the subsequent visit of the jury to the scene of the trouble and the reproduction there, for their enlightenment, of the precise conditions claimed to have existed on the evening in question.

The chief criticism of the charge in the assignments of error is that it gave the jury no adequate definition of the terms "proximate cause" and "contributory negligence." There is no foundation for this complaint. After sufficiently defining negligence and cautioning the jury that to become actionable, it must be the proximate cause of the injury complained of, the court proceeds: "The proximate cause is the direct cause; that cause without which the injury would not have been suffered by the plaintiff. There must be, as you see, therefore, a direct causal connection between the negligence of the defendant and the injury of the plaintiff. Even then the plaintiff cannot recover of the defendant if she has not proved, in the manner already explained, that is, by a fair preponderance of the evidence, that she was herself free from contributory negligence. That is, if you are not satisfied that the plaintiff was free from negligence on her own part which contributed in some degree to her own injury. If she was guilty of such contributory negligence in any degree whatsoever, then she cannot recover and your verdict must be for the defendant." Later the court again reminded the jury that they "have two questions to determine; one, as to whether this defendant was negligent, actionably negligent; that is, guilty of such negligence as contributed directly to and was a proximate cause of the plaintiff's injury; and, second, the question whether this plaintiff was guilty, by her conduct, of contributing directly to her injury, that is, of contributory negligence."

These instructions, read in connection with the fair summarized statement of the claims of the parties which the court gave the jury, were amply sufficient for their purpose. Huber v. Douglas, Inc., 94 Conn. 167,108 A. 727.

The plaintiff's objection to that portion of the charge quoted which instructs the jury that there can be no recovery "if she was guilty of such contributory negligence in any degree whatsoever," seems based upon a mistaken idea that if the defendant's negligence was a proximate cause of the injury, her own could not be; in other words, that negligence brought home to one party, excludes in law any such thing as participating negligence by the other. It is apparently upon some such theory that the plaintiff's brief urges that "there are no degrees in the expression `contributory negligence.' Negligence is contributory or it is not, depending upon whether or not it was the proximate cause of the injury."

The court, in that portion of the charge under consideration, properly recognized that negligence of both plaintiff and defendant may concurrently exist and operate together as proximate causes of an injury, and that under such circumstances if that of the plaintiff essentially contributes in any measure or degree, there can be no recovery. The language used was well adapted to express this meaning and was correct in law.

There was no error in refusing the plaintiff's specific requests to charge, since the substance of them, so far as the plaintiff was entitled to it, was covered by the instructions as given.

Other assignments of error are without merit and call for no independent consideration.

There is no error.

In this opinion the other judges concurred.