Briganti v. Connecticut Co.

• Decision Date: 20 November 1934
• Citation: 175 A. 679,119 Conn. 316
• Court: Connecticut Supreme Court
• Parties: BRIGANTI v. CONNECTICUT CO.

175 A. 679

119 Conn. 316

BRIGANTI v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

November 20, 1934

Appeal from Superior Court, Fairfield County: Alfred C. Baldwin Judge.

Action by Mike Briganti against the Connecticut Company for damages for personal injuries claimed to have been caused by defendant's negligence. On trial to the jury, a verdict for defendant was returned by direction of the court, motion to set aside the verdict was denied and judgment entered thereon, and plaintiff appeals.

No error.

If a case is a proper one for the application of the doctrine of res ipsa loquitur, plaintiff, by pleading the particular cause of accident, in no wise loses his right to rely thereon.

Robert M. Wolfe, Jr., and John Keogh, Jr., both of South Norwalk for appellant.

Walter A. Mulvihill, of New York City, and Edwin H. Hall, of New Haven, for appellee.

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

HAINES, Judge.

There is no important dispute as to the facts of this case. The plaintiff on July 18, 1933, entered the defendant's trolley car as a passenger while it was standing near the railroad station in Norwalk, and took a seat at the rear of the car on the right side. The car had been put into service on other runs from about a quarter before 6 that morning, and the plaintiff entered it about 11 o'clock. The day was warm, and the window by the seat taken by the plaintiff was open; the lower end of the sash being raised from the sill approximately 18 inches. The plaintiff rested his hand on the sill of the window, and, while the car was standing still, without any act on the part of any one, the window slid down in its casement about 12 inches to within about 6 inches of the bottom sill, when it stopped, and a piece of glass fell out and down onto the plaintiff's forefinger, cutting it deeply across the second joint, which has resulted in some limitation of flexion of the finger. There was no evidence of any defect in the glass of the window, or the sash or the casement or in the stops which held it when raised and secured it when closed, nor was there any evidence as to whether they were in working order or out of repair, or had been maliciously or otherwise tampered with, or whether the window had been opened at a proper height for the stops to catch and hold it, or whether it had been opened by a former passenger or some employee of the defendant. The glass in the window was a single sheet heavier than the ordinary window glass, and about 20 by 24 inches in size. The portion which came out was about 8 inches across, and in size was about one quarter of the whole sheet. The car had been in service earlier that morning and in use on the line for some years.

These are the essential facts upon which the plaintiff invokes the doctrine of res ipsa loquitur and claimed the right to have the case passed upon by the jury. Denying the applicability of the doctrine, the defendant moved for a directed verdict in its favor, and this was granted by the court. The defendant, in support of its contention, calls attention to the allegations of the complaint, viz.: " Said injury was caused by the negligence of the defendant in that the defendant by its servant, agent and employee allowed said window to become in a defective and dangerous condition so that it fell or dropped down causing the glass therein to break and injuring the plaintiff."

There are authorities which support the defendant's contention that the application of the doctrine is precluded where the plaintiff alleges a specific act of negligence as the cause of the injury, but the weight of authority is to the contrary, and the latter is the position to which we have adhered in this state. Firszt v. Capitol Park Realty Co., 98 Conn. 627, 642, 643, 120 A. 300, 29 A.L.R. 17.

The plaintiff now claims that the evidence shows his injury was caused not by the falling of the window, but by the unexplained breaking of the glass, and that the doctrine of res ipsa loquitur applied for the reason that the glass itself, as distinguished from the window, was an instrumentality not subject in any way to the control of the plaintiff, but was solely within the control of the defendant. The plaintiff's evidence was that the window suddenly dropped down, a distance of about 12 inches, to a point 6 inches from the lower sill, and stopped at that point. It is not now claimed there was any evidence of negligence on the part of the defendant which caused or permitted the window to fall. There was no evidence that the window or any of its parts or appliances or the glass itself was defective. The only reasonable explanation for the breaking of the glass was the jar caused by the sudden checking of the heavy window in its descent. This supports the original claim of the plaintiff that the falling of the window caused the glass to break, as set forth in that part of the complaint above quoted.

It is necessary, therefore, to consider the applicability of the doctrine of res ipsa loquitur on the basis of the unexplained fall of an open window in the car of a common carrier. A common carrier of passengers for hire is required to use the utmost care for their safety which is consistent with the nature of the business, to guard them against dangers from any source which may naturally and reasonably be expected to occur, in view of all the circumstances and of the number and character of the persons with whom they will be brought in contact. Safe, sufficient, and suitable vehicles for the transportation must be provided, together with such servants for managing the same, and such reasonable arrangements therefor, as the highest care of a prudent man would suggest as necessary for a safe passage. Murray v. Lehigh Valley R. Co., 66 Conn. 512, 518, 34 A. 506, 32 L.R.A. 539; Belledeau v. Connecticut Co., 110 Conn. 625, 627, 628, 149 A. 127.

Doubtless this may account to some extent for the fact that the doctrine of res ipsa loquitur is invoked more frequently in actions against common carriers than in any...