Opinion
Argued April 6, 1972
Decided April 6, 1972
Action to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant, brought to the Court of Common Pleas in Fairfield County and tried to the court, Zarrilli, J.; judgment for the plaintiff and appeal by the defendant. Error; new trial.
George S. Rhodes, pro se, the appellant (defendant).
George W. Ganim, for the appellee (plaintiff).
This is an appeal by the defendant George S. Rhodes from a judgment of the Court of Common Pleas awarding $600 to the plaintiff Carolyn Stebbins as damages resulting from a collision of motor vehicles. After the trial, the court stenographer died and, no transcript of the evidence being available, the court from its own notes and recollection of the testimony made a finding.
On the appeal the defendant has challenged the court's recollection of the evidence and claims that the court found several material facts without evidence to support the finding. The court denied the defendant's motion for a new trial because of the lack of a transcript of the evidence for purposes of appeal and the defendant has pressed his claim of prejudice as the result of the lack of a transcript.
In the absence of a transcript of the evidence, it is obviously impossible for the parties to print in the appendices to their briefs any of the evidence to contest or support the finding of the court. The unfortunate situation exists without fault of the court or either of the parties and in fairness to the parties a new trial must be ordered.