Barnes v. City of Waterbury

• Decision Date: 17 December 1909
• Citation: 82 Conn. 518,74 A. 902
• Parties: BARNES v. CITY OF WATERBURY.
• Court: Connecticut Supreme Court

74 A. 902

82 Conn. 518

BARNES

v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

Dec. 17, 1909.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by Patrick H. Barnes against the City of Waterbury. Appeal by plaintiff from a judgment in favor of defendant. Affirmed.

U. G. Church, for appellant. John P. Kellogg, for appellee.

RORABACK, J. In 1905 the plaintiff owned two pieces of land in Waterbury, the southerly one of which was separated from the Naugatuck river by a passway about 30 feet wide. Prior to 1905 the plaintiff had constructed a high retaining wall along the easterly boundary of the southerly piece, and graded the property up to the top of the retaining wall. In 1905 the plaintiff alleges and claims that this retaining wall and improvements were destroyed and rendered valueless by the defendant's negligent construction of a sewer along the passway upon the easterly side of his lot. The answer includes a denial of the alleged negligence and a second defense that the negligent acts complained of were the acts of the McGovern Construction Company as an independent contractor.

The plaintiff claimed to show that the work contracted for by the defendant which occasioned the injury was obviously dangerous to the plaintiff's property; that the construction of the sewer trench at the base of the plaintiff's wall in land, liable to be flooded by water" from the river, exposed the plaintiff's property to danger from the caving of the sides of the trench and from undermining on his property by the flooding of the trench with the river water. Upon this subject the court in part said to the jury: "Vet all the testimony shows, and the evidence that has been offered tends to show, that it would have been entirely safe to build the sewer past the property of the plaintiff if the trench had been properly braced, and that there was nothing dangerous in the work any further than the liability on that part of the trench, as it would be all along the line varying probably from 15 to l(i feet in depth, as I think the testimony shows to 7 to 8 feet in some places where the sewer was constructed by the McGovern Company, the liability, as I say, of the sides of the trench to fall in if they were not properly braced." The court in another portion of its charge stated to the jury: "It is a question of fact for you to say whether this work did call for such intrinsically dangerous means and agencies as would cause injury to the plaintiff's property." The evidence has not been made a part of the record. It does not appear that the character of the work to be performed under the contract in question was in its nature dangerous. There was no obvious and apparent danger that the plaintiff's wall would fall by digging a trench for the sewer along the passway. Nobody could know what the situation would be until an excavation had been made, and it could be ascertained what was underneath. "It is competent in all cases, and in some highly expedient, for the court not only to discuss, but to express, its opinion upon the weight of the evidence, without, however, directing the jury how to find the facts; and this is a right necessarily limited only by its own discretion." First Baptist Church v. Rouse, 21 Conn. 167. The course taken by the court below in its expression of an opinion as to weight of the evidence upon the question of an obvious and apparent danger did not exceed its privilege or invade the province of the jury.

Several...