Epstein v. M. Blumenthal & Co.,

158 A. 234 (Conn. 1934)


P was walking on the sidewalk on Main Street in the city of Hartford and about two o'clock in the afternoon was passing the store of the D when a servant, agent or employee, of D suddenly and without warning of any kind, came out of the entrance carrying a ladder which he had in a horizontal position and smashed into P. P was knocked to the ground and was injured. P filed a complaint alleging negligence. At trial, P offered evidence which proved that P was hit by the ladder, but the facts were not as she claimed in that she was struck by the ladder when the workmen were carrying it back into the store and not coming out of it. The trial court charged the jury upon the issues of negligence, contributory negligence, and damages presented by the P's claims of proof, but it also called their attention to the allegations of the complaint and instructed them that before they could bring in a verdict for P they must find that she had been injured in the way mentioned in the complaint and that the defendants or either of them were negligent in the way mentioned. The jury returned a verdict which the court refused to accept and then adjourned the case until the next morning. It then stated that it was in accord with the verdict as regarded D, but asked further consideration as regarded the defendant Rundbaken, and then gave them further instructions. In these it emphasized that the negligence proved must be the negligence alleged in the complaint; it told them it was their duty to examine its allegations; and it stated that it was proof of the allegations of negligence alleged, not of some negligence not alleged, which must support a verdict for the plaintiff. Thereafter the jury brought in a verdict for Ds.