Opinion
Since the plaintiff did not include any claims of proof in his draft finding, the Court was not required to and did not make a finding as to the claims of proof. As the finding did not include the claims of proof and the charge as given, the assigned error on failure to charge as requested cannot be reviewed. Where a witness has given garbled and confusing testimony, the court may, in its discretion, examine the witness to elicit the facts before the jury. Where no exception was taken to allegedly improper remarks in argument to the jury and the court was not requested to charge respecting them, the claimed error was waived.
Argued October 8, 1965
Decided November 30, 1965
Action to recover damages for personal injuries, alleged to have been caused by a defective highway, brought to the Superior Court in Hartford County and tried to the jury before Palmer, J.; verdict and judgment for the defendant and appeal by the plaintiffs. No error.
Herbert Watstein, for the appellants (plaintiffs).
Bernard D. Gaffney, with whom, on the brief, was
D. Stephen Gaffney, for the appellee (defendant).
This action, in two counts, was brought against the defendant, the city of Bristol. The first count was for damages for personal injuries sustained by the plaintiffs' decedent because of a fall and, the second count, for the recovery of medical and hospital expenses incurred by the decedent's husband, hereinafter called the plaintiff. It was alleged that the defendant failed to remedy a defective condition in one of its streets, which was icy at the time of the fall and for a long time prior thereto had been icy. Before the trial, the plaintiff's wife, the decedent, died of causes not related to her fall. The jury returned a verdict for the defendant.
The plaintiff did not include any claims of proof in his draft finding. Therefore, the court was not required to and did not make a finding as to the claims of proof. As the finding did not include the claims of proof and the charge as given, we are in no position to review the assignment of error on the failure to charge as requested. Martyn v. Donlin, 151 Conn. 402, 409, 198 A.2d 700.
But two assignments of error require attention. The first is directed to the denial of the plaintiff's motion to set aside the verdict because the court examined the plaintiff concerning the statements his deceased wife had made to him regarding the location and facts of her fall. It is quite apparent from the limited recital of the preliminaries to the examination that the witness had given garbled and confusing testimony, much of it unresponsive, before the court intervened. The court did not abuse its discretion in so doing. It was attempting to elicit the facts so that the jury could intelligently evaluate the plaintiff's case and do justice. Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187.
The other assignment of error relates to the remarks of the defendant in argument to the jury. No exception was taken to the remarks at the time they were made or at the conclusion of the argument. Nor was the court requested to charge respecting them. Under these circumstances, the plaintiff is deemed to have waived this claim of error. Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 343, 160 A.2d 899.