Boss v. City of Stamford

• Decision Date: 10 June 1914
• Court: Connecticut Supreme Court
• Parties: BOSS v. CITY OF STAMFORD.

91 A. 201

88 Conn. 260

BOSS

v. CITY OF STAMFORD.

Supreme Court of Errors of Connecticut.

June 10, 1914.

Appeal from Court of Common Pleas, Fairfield County; Frank L. Wilder, Acting Judge.

Action by Isabel M. Ross against the City of Stamford. From a judgment for plaintiff for $2,000, defendant appeals. Reversed and remanded.

Adelbert A. Skeel, of Stamford, for appellant. George P. Rowell, of Stamford, for appellee.

RORABACK, J. Three assignments of error relate to rulings upon evidence and another that the trial court failed to find as requested.

It is alleged in the plaintiff's complaint that on January 7, 1912, the plaintiff, when in the exercise of due care, stepped on an accumulation of snow and ice upon the side-walk of the city of Stamford, and was greatly damaged and injured. This allegation was denied, so that one of the controlling questions in issue was whether the sidewalk In question was slippery and Icy at the time and place alleged in the complaint.

Two witnesses called by the plaintiff upon her direct examination were allowed, against the objection of the defendant, to testify that the sidewalk in question was icy and slippery, without specifying any time. This was error.

This court has said that:

"It is conceded that in this rigorous climate the duty of cities and towns in respect to snow and ice is and must be very limited." Congdon v. City of Norwich, 37 Conn. 414, 419.

Snow and ice do not create a continuous and permanent obstruction to a sidewalk in this section of the country. They disappear many times suddenly, and a defect of this character of to-day may be removed before to-morrow by the action of the weather.

The plaintiff had the right to show all the facts and circumstances surrounding and connected with the accident in question. But she had no right to show facts and circumstances which may have been connected with the condition of this walk at a remote or uncertain time or occasion. Such evidence had a tendency to raise collateral issues to the inevitable prolongation of the trial and the probable confusion of the jury. That which these witnesses saw at such times cannot properly be said to be facts connected with the accident which happened to the plaintiff.

As a general rule, one's negligence on a particular occasion cannot be proved by showing his negligence on other occasions, nor can his freedom from negligence on one occasion be shown by proof of his due care on other occasions. Our reports furnish numerous illustrations of the application of this principle. Morris v. East Haven, 41 Conn. 252, 254; State v. Goetz, 83 Conn. 437, 440, 76 Atl. 1000, 30 L. R. A. (N. S.) 458; Budd v. Meriden Electric R. Co., 69 Conn. 272, 286, 37 Atl. 683; Tiesler v. Norwich, 73 Conn. 199, 203, 47 Atl. 161; Gilmore v. American Tube & Stamping Co., 79 Conn. 498, 504, 66 Atl. 4. These are instances where an act of negligence, or the reverse, was sought to be inferred from other acts of negligence or nonnegligence. Moffitt v. Connecticut Co., 86 Conn. 527, 529, 86 Atl. 16.

The plaintiff offered evidence tending to prove that shortly after she was injured she consulted Dr. E. Rowell, her family physician, a doctor of extensive experience, who, on account of the serious nature of the injury, referred her to Dr. Biggs, an expert surgeon. Evidence was also offered by the plaintiff as to the nature, extent, and permanency of her injuries.

The defendant offered in chief the testimony of a physician and surgeon who was conceded to be an expert. This doctor testified that he had made a physical examination of the plaintiff on behalf of the defendant, and he then described the condition of her injuries. He was then asked the following questions:

"Q. What was the usual custom among physicians in Stamford in January, 1912, as to using ansesthesia and X-ray examinations for fractures of this character? Q. I will ask you, Doctor, what the proper treatment for such an injury as this would have been, in your opinion?"

On objection these questions were excluded. These objections were well taken, and the evidence properly excluded.

This evidence was not offered for the purpose of showing that the plaintiff had not used due diligence to obtain proper medical treatment, but it was claimed as tending to diminish the damages, and therefore not ad...