Blake v. City of Waterbury
| Decision Date | 28 January 1927 |
| Citation | 136 A. 95,105 Conn. 482 |
| Court | Connecticut Supreme Court |
| Parties | BLAKE v. CITY OF WATERBURY. |
Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.
Action by Marcella J. Blake for personal injuries alleged to have been caused by a defective sidewalk, against the City of Waterbury. Judgment for plaintiff for $750, and defendant appeals. Error, and new trial ordered nisi, unless plaintiff enters remittitur.
Charles O'Connor and Edward J. McDonald, both of Waterbury, for appellant.
Frederick M. Peasley and Clayton L. Klein, both of Waterbury, for appellee.
This is an action in which the plaintiff received a verdict for damages suffered by reason of a fall upon a sidewalk in the defendant city. The complaint was treated by the trial court, and is treated by the parties in their argument before us, as stating two causes of action, one arising out of the defective condition in the sidewalk itself and the other arising out of such a condition rendered more dangerous by an accumulation of ice and snow upon it. The claimed defect in the sidewalk consisted of a trough or depression extending clear across the walk from a building abutting upon it to the curb.
The trial court charged the jury that the burden of proof rested upon the plaintiff to prove that she was herself in the exercise of reasonable care; that she was bound to make reasonable use of her senses to see and observe, but that, even though she knew of the defect, she was not necessarily bound to take another course or route to reach her objective; and that, if the jury found that the plaintiff knew of a dangerous or defective condition there, but used reasonable care in passing over it, she would not be chargeable with contributory negligence. That accords with our law. Congdon v. Norwich, 37 Conn. 414, 420; Lucy v. Norwich, 93 Conn. 545, 549, 106 A. 762. Upon the finding, nothing appears to make this general rule of law inapplicable, and we are not at liberty to follow the brief of the defendant in its excursion into the evidence. It would have been better had the trial court specifically called to the attention of the jury the possibility of the plaintiff avoiding the dangerous spot in the sidewalk instead of passing over it and her duty to exercise a degree of care proportionate to the danger she knew to exist, or might have known by a reasonable use of her faculties. It did, however, in explaining to the jury the obligation of the plaintiff to exercise reasonable care, call attention to the possibility of her avoiding the dangerous spot and to her knowledge of its condition, as relevant circumstances, and the jury could hardly have disregarded these elements in determining whether she had exercised such care. In the absence of requests to charge specifically in regard to these matters, we cannot hold the instruction given so defective as to require a new trial. Pratt, Read & Co. v. New York, N.H. & H. R. Co., 102 Conn. 735, 741, 130 A. 102.
The trial court charged the jury that it was " admitted" that the depression in the walk had existed for a long time and that the city knew of it; and, again that it seemed to be conceded that the defect had existed for a number of years; and, again, that it thought that the position of the defendant throughout the case had been one from which the jury could find that it had knowledge of the condition of the sidewalk at this point. If the trial court did not correctly state the position taken by the defendant at the trial, the charge would be clearly erroneous in these respects. But we can judge of that only from the record before us, and that record fails to disclose anything to indicate that the trial court misrepresented in any way the defendant's position; indeed, the statement in the finding of the facts which the defendant claimed to have proven does not contain any suggestion that the depression had not existed for a long time, or that the defendant did not know of it. If the statements of the trial court were correct in fact, it...
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