Agriesto v. Town Of Fairfield.

• Decision Date: 01 December 1943
• Citation: 130 Conn. 410,35 A.2d 15
• Parties: AGRIESTO v. TOWN OF FAIRFIELD.
• Court: Connecticut Supreme Court

130 Conn. 410

35 A.2d 15

AGRIESTO

v.TOWN OF FAIRFIELD.

Supreme Court of Errors of Connecticut.

Dec. 1, 1943.

Appeal from Superior Court, Fairfield County; O'Sullivan, Judge.

Action by Ada Agriesto against the Town of Fairfield to recover damages for injuries sustained when plaintiff fell on a street in the town. A verdict for defendant was set aside by the court for error in the charge, and, from such action, the defendant appeals.

Error and case remanded with direction.

J. Kenneth Bradley and John S. Barton, both of Bridgeport, for appellant (defendant).

David R. Lessler, of Bridgeport, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

The plaintiff received injuries as the result of a fall upon the roadway of Greenfield Street in the town of Fairfield which she claims was defective. The gist of the finding is that she offered evidence and claimed to have proved these facts: At about 7:30 in the evening of February 5, 1941, as she was carefully walking easterly along this roadway about one foot south of its northerly edge, there being no sidewalk, one or both of her feet went into a hole or depression of considerable extent which she could not see in the darkness and came in contact with smooth glassy black ice covering its inside surface. As a result she slipped and fell, suffering serious injuries. This hole or depression where the ice had formed was about two inches deep, two feet wide and four feet long, constituted a defect and had existed for several months, so that the defendant was chargeable with notice of it. Water gathered in it from time to time and had changed to ice, which had been there for two weeks before the date of the plaintiff's injury. The defendant violated its statutory duty to care for the highway, in that it permitted the hole or depression so to continue, with the result that water accumulated in it and changed to ice. The defective condition, then, was due to natural causes combining with a defect in the highway itself, resulting in the plaintiff's fall and injuries. The defendant's material claims of proof were that there was no hole or defect in the surface of the road; that it was not so constructed as unreasonably to cause an accumulation of water or ice thereon; that the only defect was an accumulation of ice; and that the plaintiff's fall was caused solely by slipping on it.

In submitting the case to the jury the court charged fully as to the law concerning the plaintiff's right of recovery based upon the claimed defect of the ice, but made no reference to the claimed existence of the hole or depression. The jury rendered a verdict for the defendant. On the plaintiff's motion, the court set this aside because of its failure to instruct the jury as to the plaintiff's right of recovery for injury resulting from the hole coupled with naturally caused ice, pointing out that they might have found that the hole constituted a defect in the highway and had existed long enough to have charged the town with notice rendering it liable upon this ground, notwithstanding the ice might have been there too short a time to bring home to the defendant notice of the icy condition essential to recovery for that defect by itself. In support of its ruling the court relied upon Messina v. New Haven, 119 Conn. 166, 174 A. 188. In that case, where there was evidence that the plaintiff's foot sank into a hole in the sidewalk covered by snow only two inches deep, we said (119 Conn. at page 168, 174 A. at page 188): ‘Where * * * the injury is the result of a defect combined with * * * a natural cause which was a natural incident of the use of the highway, the municipality is liable unless it appears that the * * * natural cause was so direct and separate in its operation that it, and not the defect, must be held to have been the essential or proximate cause of the injury. Frechette v. New Haven, 104 Conn. 83, 132 A. 467; Jennes v. Norwich, 107 Conn. 79, 140 A. 119.’ The defendant seeks and is entitled to have the plaintiff's claims of proof in the finding corrected by striking out the statement that one or both of her feet went into the hole or depression. Her claims of proof that she slipped on ice which had gathered in the hole and frozen remain, however. Nothing in the memorandum of the trial court in setting aside the verdict indicates that it was proceeding on the ground that there was sufficient evidence to go to the jury to subsantiate a claim that the plaintiff's foot went into the hole; it is quite consonant with that memorandum that the court was considering the case upon the basis of proof that the ice completely filled the hole and the plaintiff slipped on its smooth surface; indeed, we cannot assume that the trial court proceeded upon the assumption that facts were proved which had no foundation in the evidence. If it be said that to treat the case as one where the plaintiff slipped on smooth ice which filled the hole is to discuss facts different from those which the plaintiff claimed to have proved, the answer is this: If the trial court felt that, to secure justice to the parties, it should have submitted the case to the jury upon the basis of the facts reasonably supported by the evidence, even though not claimed by the plaintiff to have been proven, it had the right to set the verdict aside. ‘As we have frequently pointed out, a trial judge is not an umpire in a forensic encounter of advocates, and he may and should submit to the jury any issues within the pleadings reasonably supported by the evidence * * * which is necessary to secure justice between the parties.’ Strong v. Carrier, 116 Conn. 262, 263, 164 A. 501.

The question for determination, therefore, is whether under the principle quoted above from the Messina case the fact that the jury might have found that the defendant permitted the depression to continue, resulting in the accumulation of water which changed to the ice that caused the plaintiff's fall, is sufficient to require a charge on ‘a defect combined with * * * a natural cause.’ In the Frechette case, supra, we stated (104 Conn. at page 89, 132 A. at page 470): ‘If the injury would not have occurred but for the natural cause, the defect cannot be held to have produced the injury, nor can it be held to have been the essential cause of the injury.’ We quoted this with approval in the Jennes case, supra, where we further said (107 Conn. at page 84, 140 A. at page 121): ‘If the court had found that the ice storm of that morning had levelled the ridges and covered all the irregularities of the walk, so that its surface was a smooth sheet of glare ice upon which the plaintiff fell, it would necessarily follow that such condition, and not the prior...