Burke v. Town of West Hartford

• Decision Date: 19 January 1960
• Citation: 157 A.2d 757,147 Conn. 149
• Parties: John BURKE v. TOWN OF WEST HARTFORD. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 757

157 A.2d 757

147 Conn. 149

John BURKE [Irene L. Burke, Administratrix, Substituted Plaintiff] v. TOWN OF WEST HARTFORD.

Supreme Court of Errors of Connecticut.

Jan. 19, 1960.

Robert B. Cohen, Hartford, with whom, on the brief, were Morton E. Cole and Cyril Cole, Hartford, for appellant (plaintiff).

Victor J. Dowling, Asst. Corp. Coun., Hartford, with whom, on the brief, was Nicholas A. Lenge, Corp Coun., Hartford, for appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ. MELLITZ, Associate Justice.

The substituted plaintiff had a verdict for damages for personal injuries sustained by her decedent as the result of a fall on an icy sidewalk. The trial court set the verdict aside on the ground that the plaintiff had failed to sustain the burden of proving due care on the part of the decedent, and the plaintiff has appealed.

From the evidence most favorable to the plaintiff, the jury could have found the following facts. The injury was sustained on February 13, 1948, and the decedent died in December, 1953, from causes unrelated to his fall. He was employed as a clerk in the post office at Hartford and lived with his wife on New Britain Avenue in West Hartford. During the afternoon of February 13, 1948, a light rain began to fall; at times it was mixed with snow. Before the decedent left the post office, his wife telephoned him and requested that he buy some groceries at a store which was an eight or ten minute walk from his home. He picked up the groceries and arrived home with them at about 8 p. m. He appeared to be in pain, and when his wife inquired what had happened, he told her he had fallen 'on that ice in the sidewalk down in front of Rosenberg's.' This was a store a short distance from their home. The decedent and his wife walked on the sidewalk there every day on their way to and from work. Several months after he fell, the decedent pointed out the spot to his wife. At the time of his fall, there was an accumulation of ice in front of the Rosenberg store. It was rough ice, one and one-half to two inches thick, and had footprints on it. It had been there for three or four days. There were no witnesses to the fall, and the only evidence relating to the manner of its occurrence was a statement made by the decedent to his wife that he just slipped on the ice. His wife, who, as administratrix of his estate, was the substituted plaintiff, testified that the decedent knew about the ice before he fell.

The liability, if any, of the defendant for the injuries sustained by the decedent is purely statutory. It rests upon the statute which imposes liability for an injury upon a highway upon the party bound to keep the highway in repair. General Statutes, § 13-11; Town of Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454; Hornyak v. Town of Fairfield, 135 Conn. 619, 621, 67 A.2d 562; Bartram v. Town of Sharon, 71 Conn. 686, 692, 43 A. 143, 46 L.R.A. 144. Liability could follow only from the existence of a defect which (1) resulted from the failure of the defendant to use reasonable care to keep the highways within its control in a reasonably safe condition for public travel; Goldstein v. City of Hartford, 144 Conn. 739, 740, 131 A.2d 927; Petrelli v. City of New Haven, 116 Conn. 144, 149, 163 A. 759; Carl v. City of New Haven, 93 Conn. 622, 625, 107 A. 502, 13 A.L.R. 1, and (2) was the sole proximate cause of the injury. Fabrizi v. Golub, 134 Conn. 89, 97, 55 A.2d 625; Brosz v. City of Danbury, 140 Conn. 279, 282, 99 A.2d 136. To establish liability upon the part of the defendant, the plaintiff had the burden of proving freedom from contributory negligence on the part of the decedent. Leitkowski v. Town of Norwich, 125 Conn. 49, 51, 3 A.2d 84. This burden imposed upon the plaintiff the obligation of presenting adequate proof that the decedent's own negligence was not a proximate cause of his injury. Jacen v. Town of East Hartford, 133 Conn. 243, 247, 50 A.2d 61. The plaintiff was bound to present evidence which would remove the matter from the realm of speculation and conjecture. Tracy v. Welch, 109 Conn. 144, 150, 145 A. 662; Simauskas v. Connecticut Co., 102 Conn. 61, 66, 127 A. 918; Plona v. Connecticut Co., 101 Conn. 445, 448, 126 A. 529; Fay v. Hartford & Springfield Street Ry. Co., 81 Conn. 330, 335, 71 A. 364. While it was not essential that the issue be resolved by direct evidence, it was necessary to show facts or circumstances affording a logical basis for an inference justifying a belief that it was more probable than otherwise that the decedent was in...