Bjorkman v. Town of Newington

• Decision Date: 16 April 1931
• Citation: 113 Conn. 181,154 A. 346
• Court: Connecticut Supreme Court
• Parties: BJORKMAN v. TOWN OF NEWINGTON.

154 A. 346

113 Conn. 181

BJORKMAN v. TOWN OF NEWINGTON.

Supreme Court of Errors of Connecticut.

April 16, 1931

Appeal from Superior Court, Hartford County; Edward M. Yeomans Judge.

Action by Anna Bjorkman against Town of Newington to recover damages for personal injuries alleged to have been caused by a sidewalk defective by reason of snow and ice. The case was tried to the jury. Verdict and judgment for plaintiff, and defendant appeals.

Error and new trial ordered.

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

John H. Kirkham and O. A. Richardson, both of New Britain, for appellant.

Edward S. Pomeranz and S. Polk Waskowitz, both of Hartford, for appellee.

AVERY J.

The plaintiff brought her action to recover damages for injuries sustained, as she alleged, by reason of a full upon a sidewalk in the defendant town, claiming that the walk was in a defective condition because of ice and snow thereon. The appeal is taken from the refusal of the trial court to set aside a verdict in the plaintiff's favor, and for claimed error in the charge of the court, and in its rulings upon evidence.

The plaintiff offered evidence to prove the following facts: The plaintiff, a woman fifty-eight years of age, had been employed by Mr. and Mrs. Bancroft to do housework at their residence, located on Robbins avenue in what is known as the " Maple Hill" section of the defendant town. Robbins avenue, at the time of the accident, was a much traveled highway, and one of the principal streets, and the sidewalk fronting the Bancroft residence was of cinders and trap rock, and constantly used by inhabitants of the town, and others, and by school children, and persons going to and from the only grocery store in the neighborhood. The Maple Hill section is a well-populated residential district. At about 11:00 a. m. on December 30, 1929, the plaintiff, after finishing her work for that day at the Bancroft residence, proceeded to leave by a concrete service walk, leading from the north side of the house to the sidewalk on Robbins avenue; and, upon reaching the sidewalk, continued to walk in a careful manner westerly thereon. When she had reached a point on the sidewalk about five feet from the steps leading from the service walk, she slipped and fell on the ice and frozen snow, and sustained injuries.

The plaintiff also offered evidence that the last snowstorm, prior to the time of her fall, occurred on December 23, 1929, when one and two-tenths inches of snow and sleet fell. The snow from this storm had not been removed from the sidewalk up to the time of the accident, but was packed down by the feet of people and partly melted by the sun, so that it formed a sheet of ice on the walk and rendered the same defective, slippery, and unsafe for use; and that condition, without any substantial change, continued for the entire week prior to the time of the plaintiff's accident. At no time between December 23d and the time of the accident did the defendant town or any person spread sand, ashes, or other substance upon the walk to prevent persons from slipping thereon.

The defendant town offered evidence to prove that it had received no notice, either actual or constructive, of the defect, and that it had no reasonable opportunity either to know of or remedy it, for the reason that the ice on which the plaintiff fell had accumulated and formed in the late afternoon and night of Sunday, December 29th, and the early hours of Monday, December 30th; and, at 7:15 a. m., December 30th, a drizzle of rain and mist was still falling, freezing as it fell, which together with the snow and sleet which had fallen on the walk the previous afternoon and evening, and the water and slush from the high banks on the south side of the walk, flowing down upon it and freezing thereon, had formed an extremely slippery and dangerous mantle of ice upon this stretch of sidewalk as well as over the entire region.

Evidence was received as to the size of the defendant town, its population, the number of miles of streets and sidewalks, the location and size and character of the residential sections, the grand list of the town, the tax rate, and similar facts concerning the situation of the town and its resources and ability to cope with the problems of snow and ice upon the sidewalks therein, as bearing upon its duty in the premises. Evidence was also received that the town had no policemen, superintendent of streets, board of public works, or sidewalk inspector; that the responsibility for repair and supervision of roads devolved upon the selectmen; and that the sidewalks were built by the citizens at grades determined by themselves, and were maintained and cared for by them.

In its instructions to the jury, the trial court correctly informed them that a town is not an insurer against accidents occurring upon its highways; that its full duty is performed if it has used reasonable care to make them reasonably safe. This proposition the court reiterated in various ways quoting verbatim from several decisions of this court. Upon the case as presented, it was the duty of the court, in addition to stating the abstract principle, to point out, in a manner and to an extent adequate to give guidance to the jury, the considerations applicable in determining what...