Burgess v. Town of Plainville

• Decision Date: 02 June 1924
• Citation: 124 A. 829,101 Conn. 68
• Court: Connecticut Supreme Court
• Parties: BURGESS v. TOWN OF PLAINVILLE.

124 A. 829

101 Conn. 68

BURGESS v. TOWN OF PLAINVILLE.

Supreme Court of Errors of Connecticut.

June 2, 1924

Appeal from Superior Court, Hartford County; William M. Maltbie Judge.

Action by Catherine Burgess against the Town of Plainville to recover damages for personal injuries alleged to have been caused by the negligence of the defendant town in the maintenance of a sidewalk in one of its highways, brought to the superior court for Hartford county and tried to the court. Judgment for the plaintiff, and appeal by the defendant. Error, and judgment ordered entered for defendant.

B Donald Gaffney, of New Britain, for appellant.

Josiah H. Peck, of Hartford, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and ELLS JJ.

WHEELER, C.J.

A driveway ran from private property and crossed the sidewalk on the south side of East Main street, in Plainville. The surface of the driveway was gravelly, packed down hard, about nine feet wide, not level, and having its center lower than its east and west edges. The sidewalk was of cement and about five feet wide. The sidewalk to the east of the driveway terminated abruptly and formed a step down on to the driveway, its height varying, but being about two and three-fourths inches. The sidewalk on the west terminated in a rough step upward from the surface of the driveway, being in height about five and three-eighths inches at the south side of the sidewalk and four and one-eighth inches at the point of the accident. In the center of the sidewalk where it terminated at the driveway was a broken and irregular hole about ten inches in width crossways of the walk, and about four inches deep at the deepest point, and extending into the sidewalk about four inches at the maximum. The surface of the break sloped upward from the level of the driveway until it came at its center point to within about an inch of the surface of the concrete walk whence there was an abrupt rise to that surface. This break in the edge of the sidewalk had existed for a considerable time, but just how long is not known. Neither the officials of the town nor adjoining landowners nor their tenants had actual knowledge of this break, nor was its size and nature such as to put the officials of the town upon notice of its existence. The plaintiff had been familiar with this sidewalk for upwards of two years, and knew of the step down at the easterly side of the driveway and of the step up at the westerly side, but she had never seen the said break.

As the plaintiff attempted, on September 7, 1922, to pass from the driveway to the sidewalk on its west side she stumbled by reason of her foot getting into the depression formed by the break, and fell and fractured her left wrist. The trial court concluded (a) that the conditions presented by this driveway and the termination of the sidewalk at its westerly edge constituted a defect in the sidewalk which rendered it not reasonably safe for travelers upon it; (b) that, had the officials of the town used reasonable care to render the sidewalk at this point reasonably safe for travelers, the danger to them due to the break would have been removed; (c) that the plaintiff was not guilty of contributory negligence in proceeding across the driveway as she did, nor in failing to see the break, nor in the way in which she stepped up to the level of the sidewalk. On November 30, 1922,...