(dissenting).
This, I fear, is another instance of a seemingly hard ease making bad law. I say “seemingly,” as on the surface this appeared to be a situation where a mother was denied recovery for the death of her son because of an atmosphere created at the trial raising doubts as to the' son’s general driving habits. For the parties in a rather natural attempt to limit the papers on appeal — now unnecessary under our new rule for appeal on the original papers — gave us little more than the evidence rulings objected to below.1 But an examination of the trial court records gives the case a different aspect, showing, as it does, a very thorough five-day trial with extensive testimony, among which was a two-day examination and cross-examination of the individual de*427f endant. And while not all the testimony was transcribed, enough was available to make clear the demonstration made to the jury below, from the very real evidence of the tire marks on the highway and the damaged portions of the colliding vehicles, that Perkins had driven through a stop sign onto the through highway upon which defendant Forte was driving his truck and ahead of Forte, and that the only reasonable ground for recovery was a last clear chance. But further, the severe damage to the left front of Perkins’ vehicle and the right front of Forte’s suggests difficulty in ascribing a last chance to Forte to avoid the collision. Hence I do not believe the case can be considered a close one. I advert to these facts not as settling the question of evidence here involved, but as eliminating the otherwise moving humanitarian basis for reversal. I have long been one of those who have been convinced that the problem of award for automobile accident victims was not met at all adequately by application of doctrines of common-law negligence.2 3 But until this law is changed by the proper authorities I feel that we must accept it, and should not warp or distort our rules of evidence in an obviously vain attempt to ameliorate its harshness.
The logical basis for the trial court’s rulings seems soundly buttressed in state law, as well as in the general law of evidence. In Chase v. Fitzgerald, 132 Conn. 461, 45 A.2d 789, 792, 163 A.L.R. 247, it was held that the measure of damages in wrongful death actions was compensation for destruction of earning capacity, and that earning capacity could be shown by past wages and by “general experience as-a wage earner and * * * qualifications for conducting a gainful occupation.” See also McManus v. Jarvis, 128 Conn. 707, 22 A.2d 857; Federman v. City of Stamford, 118 Conn. 427, 172 A, 853; Hayes v. Morris & Co., 98 Conn, 603, 119 A. 901; Jacques v. Bridgeport Horse R. Co., 41 Conn. 61, 19 Am.Rep. 483; and Comstock v. Connecticut R. & Lighting Co., 77 Conn. 65, 58 A. 465, 466, where Judge Simeon E. Baldwin said that the decedent’s “general qualities and his qualifications for any particular business in which he may be engaged may be described by those who know him * * Thus there is no doubt that under Connecticut law the challenged testimony was of some relevance. See also 1 Wigmore on Evidence § 75 (3d Ed.1940).3 Once this premise is established, Connecticut law is furthermore clear that the possible remoteness of the evidence was a question peculiarly within the province of the trial judge. Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 58 A.2d 387; State v. Isaacson, 114 Conn. 567, 159 A. 483; Ruerat v. Stevens, 113 Conn. 333, 155 A. 219.4
I can agree with essentially all my brethren have said in suggesting the rather weak character of this evidence as it appeared when the case had been closed, though not necessarily when it was proffered. But what they say lends emphasis to the point that I am making, since it is so decidedly directed to the weight, rather than the rational character, of the *428evidence. But weight is typically a matter to be tested by the trier of facts and is not a ground in itself for finding irrelevance. This ruling suggests interesting questions as to how far appellate eclecticism should go. Since doubt is suggested as to the weight here, with respect to a boy 19 years old getting $40 a week, we are left to conclude that greater age and greater wages would lend a support to Judge Smith’s ruling that it does not now have. Thus, would the evidence be admissible if it concerned a man 40 years of age earning $60 a week? Just where is the line of adequate weight met and passed? And — since I doubt that the state courts will wish to follow this ruling — how are Judge Smith and Judge Anderson going to decide or to know how to decide the next case of this general type they get? It may almost be thought that the more bite the evidence has, the less admissible may it eventually prove.
Such pertinent questions are particularly indicated when appellate interference means an upsetting for restoration and long retrial in a crowded docket of a case apparently well tried by an experienced trial judge. So by way of summary I suggest that this ruling, however humanitarian it may appear, seems to me to violate three principles of proper approach to appellate supervision of trial activities. First, it reverses the usual attitude expressly demanded by F. R.C.P., rule 43(a), and indeed often reiterated by us by way of advice to trial judges of the general trend toward admissibility of all relevant evidence and the resolution of doubts that way. See, e. g., United States v. White, 2 Cir., 124 F.2d 181, 186; Dundom v. New York Cent. R. Co., 2 Cir., 145 F.2d 711, 713; Reck v. Pacific-Atlantic S. S. Co., 2 Cir., 180 F.2d 866, 869-870, and cases there cited. Second, it interferes with the informed control of the case by the trial judge upon whom responsibility improper conduct of the case must impinge much more than upon any appellate judge. And third, despite my brothers’ disclaimer, it does reflect upon the highly intelligent juries so customary in this district. Of course I appreciate a current attitude to view the jury as a necessary palladium of our liberties, while never trusting it to exercise any common sense or even intelligence. But I see no reason to conclude that the jury here either did not or could not understand or perhaps willfully violated Judge Smith’s clear-cut and often reiterated admonitions as to the necessary and proper limits on the use of this testimony.
Let me reiterate that it is not the loss of the one minor item of evidence to which I take exception; it is rather the whole approach to the important question of jury trials in our congested modern metropolitan courts. Had the judge excluded the evidence, I think we could have upheld his hand as a proper discretion against collateral voyages. But after most extensive consideration he acted otherwise. And now we send the case back for a week’s retrial for the express purpose of putting blinders on the triers.
. The parties last June entered into a stipulation as to the contents of the record on appeal — which was then printed; but this was hardly intended to, nor could it, exclude other details below from our consideration. See our present Rule 11(b) and F.R. 75(h).
. Sec Report by the Committee to Study Compensation for Automobile Accidents to the Columbia University Council for Research in the Social Sciences (Feb. 1, 1932), in which I participated; and see also Grad, Recent Developments in Automobile Accident Compensation, 50 Col.L. Rev. 300 (1950); James & Law, Compensation for Auto Accident Victims; A Story of Too Little and Too Late, 26 ConmB.J. 70 (1952).
. Holding further that “where injury to earning capacity is involved, the actual character may be material, and conceivably also the reputed character for skill and the like,” thus making inappropriate the criticisms of the detailed and subordinate rulings as in note 2, supra. Gases such as Black v. Hunt, 96 Conn. 663, 115 A. 429, and Ross v. City of Stamford, 88 Conn. 260, 91 A. 201, concern the issue of negligence, not that of earning capacity.
. In view of this principle it seems unfortunate that Judge Smith’s careful and balanced approach to his decision on the plaintiff’s motion for a new trial should he somehow taken as an admission against interest on his part.