Bradbury v. City of S. Norwalk

• Decision Date: 17 December 1907
• Citation: 80 Conn. 298,68 A. 321
• Parties: BRADBURY v. CITY OF SOUTH NORWALK.
• Court: Connecticut Supreme Court

68 A. 321

80 Conn. 298

BRADBURY

v. CITY OF SOUTH NORWALK.

Supreme Court of Errors of Connecticut.

Dec. 17, 1907.

Appeal from Superior Court, Fairfield County; Ralph Wheeler, Judge.

Action by Jennie E. Bradbury against the city of South Norwalk for personal injuries alleged to have been caused by defendant's negligence. Verdict and judgment for plaintiff for $300, and defendant appeals, alleging errors, including the refusal to set aside the verdict as against the evidence. Affirmed.

John H. Light, for appellant. James T. Hubbell, for appellee.

THAYER, J. The complaint alleged that the defendant removed the cover of a catch-basin located in a crosswalk in one of its streets, and so negligently and improperly replaced it that, when the plaintiff stepped on it in passing along the street, the cover turned, letting the person of the plaintiff fall into the catch-basin, causing the injuries complained of. After the plaintiff had rested her case, the defendant, under the statute (Gen. St. 1902, § 761), moved for judgment as in case of nonsuit. One of the errors assigned in the reasons of appeal is the overruling of this motion. In Bennett v. Agricultural Ins. Co., 51 Conn. 504, 512, it was held that the refusal of the court to grant a motion for nonsuit, being a matter committed to the discretion of the court, is not reviewable upon the application of the defendant; and this has been repeatedly affirmed. Dubuque v. Coman, 64 Conn. 475, 481, 30 Atl. 777; Cook v. Morris, 66 Conn. 196, 209, 33 Atl. 994; McVeigh v. Ripley, 77 Conn. 136, 141, 58 Atl. 701; Storms & Co. v. Horton, 77 Conn. 334, 337, 59 Atl. 421; Norman Printers' Supply Co. v. Ford, 77 Conn. 461, 467, 59 Atl. 499. Counsel for the defendant did not discuss this assigned error in his brief or oral argument, and it could have been well omitted from his appeal. After the evidence was closed, the defendant requested the court to direct the jury to return a verdict for the defendant. This was refused. After a verdict for the plaintiff had been rendered, the defendant moved the court to grant a new trial on the ground that the verdict was against the evidence. This also was refused. Each of these rulings is assigned as error in the reasons of appeal, and it will be convenient to consider them together.

When the facts of the ease are undisputed, the judgment will be a mere conclusion of law upon those facts, and it is the duty of the court to direct the jury as to the verdict which they should render, and a refusal to so direct, when requested, is error. People's Savings Bank v. Norwalk, 56 Conn. 547, 556, 16 Atl. 257; Ward v. Metropolitan Life Ins. Co., 66 Conn. 227, 241, 33 Atl. 902, 50 Am. St. Rep. 80; McVeigh v. Ripley, 77 Conn. 136, 141, 58 Atl. 701; Allen v. Ruland, 79 Conn. 405, 413, 65 Atl. 138. But when there are questions of fact in issue material to the judgment disputed, and to be determined from conflicting testimony of which there is sufficient to support a verdict, such questions must be submitted to the jury. Occum v. Sprague Mfg. Co., 34 Conn. 529, 538; Cook v. Morris, 66 Conn. 196, 211, 33 Atl. 994; Hogben v. Metropolitan Life Ins. Co., 69 Conn. 503, 511, 38 Atl. 214, 61 Am. St Rep. 53; Pigeon v. Lane, 80 Conn. 237, 67 Atl. 886. After verdict, the court may upon motion set the verdict aside and grant a new trial, although the evidence was conflicting. Kinne v. Kinne, 9 Conn. 106, 21 Am. Dec. 732; Howe v. Raymond, 74 Conn. 68, 73, 49 Atl. 854; Burr v. Harty, 75 Conn. 127, 129, 52 Atl. 724; Uncas Paper Co. v. Corbin, 75 Conn. 675, 678, 55 Atl. 165; Fell v. Hancock M. L. I. Co., 76 Conn. 494, 496, 57 Atl. 175. In such cases the rule is that the court "should not set aside the verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption, or partiality." Burr v. Harty, 75 Conn. 127, 129, 52 Atl. 724; Fell v Hancock Mutual Life Ins. Co., 76 Conn. 494, 496, 57 Atl. 175.

Upon the trial it was admitted, or testified to and not denied, that the catch-basin was in a crosswalk in a much traveled street, and that its top and lid were so made that the latter, when properly placed, would not become displaced without human agency; that at the time of the accident it was out of place, and lay upon the top of the catch-basin in such a manner as to seem secure, but so that, when stepped upon by the plaintiff, it tipped and let her into the catch-basin. That it was negligence on the part of the party removing the cover to so replace it that such...