Bernardo v. Hoffman

• Decision Date: 30 April 1929
• Citation: 145 A. 884,109 Conn. 158
• Court: Connecticut Supreme Court
• Parties: BERNARDO v. HOFFMAN ET AL.

145 A. 884

109 Conn. 158

BERNARDO v. HOFFMAN ET AL.

Supreme Court of Errors of Connecticut.

April 30, 1929

Appeal from Superior Court, Hartford County; Allyn L. Brown, Judge.

Action by Aniello Bernardo, administratrix of John Bernardo deceased, against Israel J. Hoffman and others, to recover damages for fatal injuries to plaintiff's decedent alleged to have been caused by defendants' negligence. From a denial of her motion to set aside verdict for defendants directed by the court, plaintiff appeals. No error.

Josiah H. Peck and Jacob Berman, both of Hartford for appellant.

Joseph F. Berry, of Hartford, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HAINES, J.

Upon the presentation of the evidence, the trial court granted a motion to direct a verdict and judgment was entered for the defendants. Upon the denial of her motion to set aside the verdict, the plaintiff appealed. The court granted the motion for a directed verdict upon two grounds, viz.: That the plaintiff's decedent was a trespasser upon the defendants' property, and that the evidence did not establish the liability of the defendants for negligence.

This action of the court was justified if upon the evidence the jury could not reasonably and legally have reached any other conclusion than that embodied in the verdict as rendered. Sedita v. Steinberg, 105 Conn. 1, 5, 134 A. 243, 49 A.L.R. 154; Heringer v. Underwood Typewriter Co., 103 Conn. 675, 676, 131 A. 322. And in considering the evidence before us, we must accord the plaintiff-appellant the benefit of that construction most favorable to her claims. Hayes v. New York, N.H. & H. R. Co., 91 Conn. 301, 304, 99 A. 694; Greenhill v. Connecticut Co., 92 Conn. 560, 562, 103 A. 646.

From the evidence of record the jury could reasonably have found that the defendant-appellees were the owners of a theater building in New Britain on a lot extending from Main street on the west along Chestnut street on the south with a pass way on the east and another on the north side of the building. On the roof of the building was a penthouse about 14 by 20 feet in size, which was a part of the ventilating system of the theater. The defendants owned an easement of passage 12 feet wide in that portion of the east pass way which adjoined their land. The pass way itself was of varying widths, from 13 1/2 to 23 feet, and was owned by the Connecticut Railway & Lighting Company, the adjoining proprietor. The plaintiff's decedent, John Bernardo, was 22 years of age and on the evening of April 19, 1928, with a companion, Philip Burkarth, responded to the ringing of the fire alarm bell which was on the outside of the south wall of the theater building near the southeast corner of the building. Over the bell were the words, " When bell rings call Police or Fire department." After reaching the building, some one said to the crowd assembled there that there was no fire in fact, and the two young men stood by the fence opposite the southeast corner of the theater building and spoke to another man standing there, who thought he had smelled smoke coming from the ventilator of the theater, but upon stepping to the ventilator opening they found this was not so. They returned to the fence, and in a few seconds a loud rumble was heard, when, seeing the roof of the penthouse rolling off the top of the theater, the third man shouted, " Look out," and ran up the pass way to escape, followed by the two young men. The roof of the penthouse, which was of galvanized iron about 14 by 20 feet in size and weighing approximately 800 pounds, was torn from its place by a high wind then blowing, and fell from the roof of the theater into the pass way, and the plaintiff's decedent in thus endeavoring to escape, was caught under the falling roof and so severely injured that he died the following day.

When the penthouse roof rolled over the theater cornice and put the decedent's life in danger, he was standing at the corner of the fence on the opposite side of the pass way from the theater, near the supposed line of the sidewalk and quite outside the 12-foot space over which the defendants had a right of way. The pass way at this point was about 15 feet wide and the decedent was on the 3-foot strip between the corner of the fence and the edge of the defendants' right of way.

Under these circumstances it is clear that when the danger became imminent and obvious to the decedent, he was not a trespasser upon the defendants' premises as claimed by the defendants. At most, he was a trespasser on the premises of the Connecticut Railway & Lighting Company, an adjoining property owner, and was violating no rights of the defendants. If the decedent had been injured where he stood they manifestly could not have defended upon the ground that he was a trespasser upon their premises. If they had owned this 12-foot strip onto which he ran or had the exclusive control of it, he would not, even then, have become more than a technical...