The plaintiff's car while it was crossing a highway was struck by the defendant's car. The only allegation of statutory negligence was that the defendant was operating his car with defective brakes. There was no claim of proof in the finding that the brakes were defective. Held that it was error for the court to charge on statutory negligence for operating with defective brakes.
Argued October 5, 1965
Decided November 9, 1965
Action to recover damages for injury to property, alleged to have been caused by the negligence of the defendant, brought to the Court of Common Pleas in Fairfield County, where the defendant filed a counterclaim and the issues were tried to the jury before Lugg, J.; verdict and judgment for the plaintiff on the complaint and counterclaim and appeal by the defendant. Error; new trial.
Thomas F. Keyes, Jr., with whom, on the brief, was Walter A. Mulvihill, for the appellant (defendant).
John J. McNamara, for the appellee (plaintiff).
The jury could have reasonably found the following facts: On July 26, 1956, about 6:00 p.m. the plaintiff was the owner of a car which he was driving easterly on the Boston Post Road, a public highway in the town of Milford, approaching Kramer's Cabins, a motel on the northerly and opposite side of the highway. When he reached a point opposite the driveway leading to the motel, he pulled off the road and waited on its southerly shoulder, facing east, until traffic had passed. It was daylight and visibility was good. The defendant was proceeding in a westerly direction in his right-hand lane on the northerly side of the highway. The plaintiff proceeded to cross the highway to the motel, at the entrance to which his car was struck by the defendant's car and damaged.
The plaintiff's only allegation of statutory negligence was that the defendant failed to have brakes adequate and sufficient to bring his car to a halt, that is, that he operated his car with inadequate or defective brakes. The court charged the jury that the operation of an automobile with defective brakes constituted statutory negligence and was negligence as a matter of law. The defendant excepted to this portion of the charge on the ground that there was no evidence from which the jury could find that the defendant violated the statutory provisions concerning brakes. The exception was well taken since there is no claim of proof in the finding that the defendant was operating his motor vehicle with defective brakes.
It is the duty of the court to submit to the jury no issue foreign to the facts in evidence. Fleischer v. Kregelstein, 150 Conn. 158, 160, 187 A.2d 241; Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250.
As a new trial is required, there is no need to discuss the remaining assignments of error.