In an action for negligently running an automobile into and killing the plaintiff's intestate, the defendant, in whose favor a verdict was rendered, claimed that the decedent was intoxicated and suddenly stepped or staggered out into the roadway just in front of the car. Held that in this situation the matter of intoxication became one of great importance in its bearing upon the exercise of due care by the decedent; and therefore a statement by the trial judge in his charge, to the effect that the question for the jury to determine was whether the plaintiff had shown "by a fair preponderance of the evidence" that the decedent was not intoxicated at the time of the accident, was both erroneous and prejudicial to the plaintiff. The trial court charged the jury that under the circumstances of this case, §§ 1538, 1540 of the General Statutes did not, as matter of law, require the defendant to reduce his speed or blow his horn; but that the question for them to consider was whether in the exercise of reasonable care he ought to have done so. Held that this instruction was not erroneous. The trial court may, in its discretion, recall the jury, and instruct them that there can be no recovery by the plaintiff for any act of negligence not set up in the complaint.
BEACH, J.
The court did not err in charging the jury, in substance, that the defendant was not, as a matter of law, required by §§ 1534 and 1538 of the General Statutes, to reduce his speed or blow his horn, under the circumstances of this case; but that the question for the jury to consider was whether, in the exercise of reasonable care, he ought to have done so. Nor was it error for the court to recall the jury and instruct them that the plaintiff could not recover for any act of negligence not set up in the complaint.
The third assignment of error, relating to that portion of the charge above quoted, seems to be well taken. It is true, as the court points out, that the only importance of the alleged intoxication of the deceased was that, if true, it strengthened the probability of the defendant's claim that the plaintiff staggered out in front of the defendant's automobile. In that connection it was of great importance, and the court was in error in saying that the question was whether the plaintiff had shown the jury by a fair preponderance of evidence that the deceased was not intoxicated. Intoxication is not negligence per se, and it was therefore no part of the plaintiff's case to show that the deceased was not intoxicated at the time. Intoxication, in this case, was simply an alleged fact which the defendant sought to prove because it tended to confirm his version of the accident, and by attempting to prove it the defendant volunteered to prove it by a fair preponderance of all the evidence bearing on that particular fact.