Bartholomew v. Catania

• Decision Date: 20 April 1971
• Citation: Bartholomew v. Catania, 285 A.2d 350, 161 Conn. 130 (Conn. 1971)
• Court: Connecticut Supreme Court
• Parties: Russell BARTHOLOMEW v. Salvatore CATANIA et al.

Page 350

285 A.2d 350

161 Conn. 130

Russell BARTHOLOMEW v.Salvatore CATANIA et al.

Supreme Court of Connecticut.

April 20, 1971.

Howard Scheinblum, Hartford, with whom was Morton W. Appleton, Hartford, for appellant(plaintiff).

John J. Reid, Hartford, for appellee-appellant(defendant Presta).

Dominic J. Ferraina, Windsor, for appellee(named defendant et al.).

Before HOUSE, COTTER, THIM, RYAN and SHAPIRO, JJ.

COTTER, Associate Justice.

The plaintiff, an ambulance driver, brought this action to recover damages for personal injuries resulting from a fall alleged to have been caused by the negligence of the defendants Salvatore and Ruth Catania and Joseph P. Presta, the tenants and landlord, respectively, of a single-family dwelling.The plaintiff alleged in his complaint that the occurrence and his resultant injuries were caused by the slippery, dangerous and defective condition of the surface of a private flagstone sidewalk leading from the side entrance of the premises.At the conclusion of the case, the defendants rested and moved for a directed verdict.The court reserved decision on the motion, pursuant to Practice Book§ 255, and submitted the case to the jury.A verdict was returned in favor of the plaintiff against all the defendants.The trial court, on the motion of the defendants, set aside the verdict for the plaintiff and rendered judgment for the defendants notwithstanding the verdict on the ground that the evidence presented was insufficient to sustain the verdict.The plaintiff has appealed from the judgment and pursues, as the sole assignment of error, the claim that the court erred in granting the defendants' motion to set aside the verdict for lack of evidence and rendering judgment notwithstanding the verdict.The defendant Presta, pursuant to Practice Book§§ 653-59, filed a bill of exceptions attacking certain rulings of the trial court.We find it unnecessary, in the view we take of the case, to consider the bill of exceptions.

In reviewing the decision of the trial court on the motion to set aside the verdict and for judgment notwithstanding the verdict, we must consider the evidence in the light most favorable to the plaintiff.Kopjanski v. Festa, 160 Conn. 61, 63, 273 A.2d 692;Lewis v. Kasimer, 153 Conn. 13, 15, 211 A.2d 837;see53 Am.Jur., Trial, § 349.We determine whether the trial court, in the exercise of a broad legal discretion, was justified in taking the action it did.Vuono v. Eldred, 155 Conn. 704, 705, 236 A.2d 470;Joanis v. Engstrom, 135 Conn. 248, 251, 253, 63 A.2d 151.

Crucial to the plaintiff's recovery in this case is proof that the defendants had either actual or constructive notice of the presence of the specific defective condition which caused the plaintiff's fall.Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824.The evidence printed in the appendix and offered in furtherance of this basic issue, taken in the light most favorable to the plaintiff's case, fails to support his position.That evidence discloses that the plaintiff testified that as he walked out of the house holding the rear end of a stretcher bearing Mrs. Catania's fatherhe looked down and saw 'snow on the ground but it looked relatively safe.'He stepped off the landing with his right foot and stated that he'evidently stepped on the edge of a broken piece of flagstone.'He further testified, referring to a photograph in evidence as an exhibit, that his 'right foot stepped partially onto the flagstone and partially off on the flagstone causing' him 'to slip off into the indentation.'The photograph, taken sometime after the plaintiff had fallen into the snow, moving it and scattering it around, does not in and of itself depict a specific unsafe or defective condition.When the plaintiff was about to step from the landing he observed only a flat surface of snow on the ground and he testified that he did not recognize the presence of flagstones until after the fall.He was unaware of the precise depth of the claimed separation between the flagstones.

The other evidence printed by the plaintiff relates to the testimony of the defendantSalvatore Catania and the defendant Presta.A review of Catania's testimony reveals that the walk consisted of separated flagstones which were in place when he rented the house and that it was difficult to judge from the photograph in evidence the area between the flagstones but he did testify in this regard that it looked to him to be 'about a foot.'The remaining evidence printed by the plaintiff claimed by him to be pertinent to proof of an alleged defect in the surface of the flagstone walk relates to Catania's...