Beckwith v. Town of Stratford

• Citation: 29 A.2d 775,129 Conn. 506
• Court: Supreme Court of Connecticut
• Decision Date: 28 December 1942
• Parties: BECKWITH v. TOWN OF STRATFORD et al.

29 A.2d 775

129 Conn. 506

BECKWITH

v. TOWN OF STRATFORD et al.

Supreme Court of Errors of Connecticut.

Dec. 28, 1942.

Appeal from Superior Court, Fairfield County; Inglis, Judge.

Action by Frederick H. Beckwith, administrator of the estate of Ella F. Beckwith, deceased, against the Town of Stratford and others for personal injuries alleged to have been caused by a nuisance created and maintained by defendants. Judgment for plaintiff against the named defendant, and the named defendant appeals.

No error.

Before MALTBIE, C. J., and JENNINGS, ELLS, and DICKENSON, JJ.^*

William Reeves and John F. McGowan, both of Bridgeport, for appellant (named defendant).

Theodore E. Steiber, of Bridgeport, for appellee (plaintiff).

MALTBIE, Chief Justice.

The plaintiff brought this action to recover for injuries suffered by a fall which, as she claimed, was caused by stepping into a depression in a sidewalk in the defendant town as she was walking along it. She died and the administrator of her estate was substituted as plaintiff. From a judgment in his favor the town has appealed. The action was based on nuisance. The trial court's findings as to the circumstances of the plaintiff's fall and that it was due to her stepping into the depression are supported by evidence sufficient to meet the standard of proof in a civil action, that is, proof which produces "a reasonable belief of the probability of the existence of the material facts." Esserman v. Madden, 123 Conn. 386, 388, 195 A. 739, 740. The sidewalk in question was five feet wide. In order to provide a driveway approach to the abutting property, the outer edge of the sidewalk for a distance of thirteen feet was made level with the pavement of the adjacent street; this portion of the walk sloped upward from the line of the pavement for a distance of eighteen inches until it. reached the level of the remainder of the walk; and at the sides of the approach it also sloped upward for eighteen inches to the same level. The depth of the depression at the line of the pavement was four and one-half inches. The result was that these slopes had a pitch of three inches to a foot. The engineering standard for such construction is that there shall be a slope with a cross pitch of not more than one-half inch to the foot. The suddenness of this slope could have been avoided by commencing the depression at a point farther away from the line of the pavement and gently sloping it down to the level of the pavement. If two persons were walking abreast along the sidewalk, the depression would be apt to be in the course of the one walking nearer the street. The location is in a busy section of the defendant town.

This condition did not constitute a nuisance per se. This exists where there is a condition which is a nuisance in any locality and under any circumstances. 39 Am.Jur. 291. Such a nuisance as regards the use of land seldom, if ever, occurs; the same conditions may constitute a nuisance in one locality or under certain circumstances, and not in another locality or under other circumstances. To constitute a nuisance in the use of land, it must appear not only that a certain condition by its very nature is likely to cause injury but also that the use is unreasonable or unlawful. Hoadley v. Seward & Son Co., 71 Conn. 640, 646, 42 A. 997; Cadwell v. Connecticut Railway & Lighting Co., 84 Conn. 450, 454, 80 A. 285; Balaas v. Hartford, 126 Conn. 510, 514, 12 A.2d 765; 1 Wood, Nuisances, 3d Ed., § 2; Winfield, Textbook of the Law of Tort, 468. There is no claim in this case that the city acted unlawfully in constructing the sidewalk as it did. That the condition here in question not only was a source of danger to persons using the sidewalk but that it unreasonably exposed them to that danger were conclusions which the trial court could reasonably reach. It is true that it found that no claim other than the one in suit had ever been made against the defendant town for injuries claimed to be due to a fall because of this particular depression, and that a similar method of construction of driveway approaches had been used in many other instances in the defendant town; and the defendant is entitled to have added to the finding the fact that, within the period of seven preceding years, no claim had been made for injuries due to falls at these other places. These facts, however, fall short of establishing that other persons had not fallen because of these depressions and are insufficient to invalidate the conclusion of the trial court that there existed a nuisance in fact by reason of the depression.

The defendant also claims that the plaintiff was not entitled to recover, by reason of her own contributory negligence. The trial court found that she was not guilty of contributory negligence, but, even if she had been, that this would hot defeat her cause of action because the nuisance was one created by positive acts of the agents of the town, and did not arise merely because of neglect on its part. We have no need to consider whether the court could reasonably reach the first conclusion because its second was undoubtedly sound.

In the argument, defendant's counsel stated that there was some misunderstanding at the bar as to the meaning of the term "absolute nuisance" as used in our opinions and the effect of a finding of the existence of such a nuisance as regards contributory negligence. The words quoted were used in the opinion of the New York Court of Appeals, speaking by Cardozo, C. J., in McFarlane v. Niagara Falls, 247 N.Y. 340, 348, 160 N.E. 391, 57 A. L.R. 1, in which the attempt was made to arrive at a rational and practicable solution of the vexing problem as to the place of contributory negligence in an action based on a nuisance. See note, 57 A.L.R. 7. In Hoffman v. Bristol, 113 Conn. 386, 393, 155 A. 499, 502, 75 A.L.R. 1191, we quoted the portion of the opinion in the McFarlane case in which the words "absolute nuisance" were used. In these opinions these words refer to situations in which negligence is not the "basis of the nuisance," as expressed by Judge Cardozo [247 N.Y. 340, 160 N.E. 393, 57 A.L.R. 1], or the nuisance "is not grounded on negligence," as expressed by Hinman, J., in the Hoffman case. This was the meaning given them in Hill v. Way, 117 Conn. 359, 364, 168 A. 1, Bacon v. Rocky Hill, 126 Conn. 402, 412, 11 A.2d 399, and Warren v. Bridgeport, 129 Conn. 355, 360, 28 A.2d 1. It is true that in Gipstein v. Kirshenbaum, 118 Conn. 681, 684, 174 A. 261, and Jager v. First National Bank, 125 Conn. 670, 678, 7 A.2d 919, the words might be taken to refer rather to cases where there was a nuisance as matter of law as opposed to one where the existence of the nuisance was to be determined as a question of fact. We did not mean in these cases to hold that contributory negligence would not be a defense to a nuisance existing as matter of law, if that nuisance was grounded in negligence, for that would not be so.

Apart from nuisances which have their origin in accident, nuisance resulting in personal injury fall into three general classes. Beven, Negligence, 4th Ed, p. 426, note. One class includes nuisances which result from conduct which is in itself a violation of law, and as to them it has been held on high authority that contributory negligence is not a...