Calway v. William Schaal & Son, Inc.

• Decision Date: 29 July 1931
• Citation: 113 Conn. 586,155 A. 813
• Parties: CALWAY v. WILLIAM SCHAAL & SON, Inc., et al.
• Court: Connecticut Supreme Court

155 A. 813

113 Conn. 586

CALWAY v. WILLIAM SCHAAL & SON, Inc., et al.

Supreme Court of Errors of Connecticut.

July 29, 1931

Appeal from Superior Court, New Haven County; John Richards Booth Judge.

Action by Marcia Calway against William Schaal & Son, Incorporated and others, to recover damages for personal injuries alleged to have been caused by defendants' negligence. The case was tried to the jury. From denial of plaintiff's motion to set aside judgment of nonsuit, plaintiff appeals.

Harry R. Cooper, of Meriden, for appellant.

Daniel D. Morgan, Phillip Pond, and Joseph B. Morse, all of New Haven, for appellee Home Nat. Bank.

William B. Gumbart and Charles A. Watrous, both of New Haven, for appellee William Schaal & Son, Inc.

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

MALTBIE, C.J.

The plaintiff in the late afternoon of December 24, 1929, fell upon a public sidewalk in front of premises in Meriden owned by the defendant the Home National Bank and leased by it to the defendant William Schaal & Son, Incorporated. The sidewalk was built up to the wall of the building and sloped slightly toward the street. Above and projecting over it was a coping along the front of the building and a cornice forming a part of the roof. The plaintiff claimed to have slipped on ice upon the walk formed by the freezing of water caused by drippings from the melting of snow accumulated upon these projections. The complaint, which lacked that precision which is desirable, particularly in a trial to the jury presents a fourfold aspect. It alleges negligence in allowing snow to accumulate upon the roof and coping of the building, so that it melted and dripped upon the sidewalk, there to freeze; negligence in not making some provision in the construction of the building which would have prevented the water dripping upon the sidewalk; maintenance of a nuisance consisting of the construction of the building in such a way that such dripping naturally resulted; and negligence in failing to take steps to protect passers-by from the dangerous condition upon the sidewalk due to the ice upon it.

This being an appeal from the refusal to set aside a nonsuit, that refusal cannot be sustained if, taking the evidence in its most favorable light to the plaintiff, strengthened by every reasonable inference, it afforded any substantial support to the allegations of the complaint. Baggish v. Offengand, 97 Conn. 312, 320, 116 A. 614. It cannot be denied that there was evidence that the plaintiff fell by reason of slipping upon ice formed upon the sidewalk from water which was caused by the melting of snow upon, and dripped from, the projections upon the front of the building; and that the snow had fallen the day before, and melted and dripped during the next day. There was also evidence from which the jury might reasonably conclude that water usually did drip from the projections in storms and would drip from melting snow accumulated upon them. From that they might reasonably have inferred knowledge of the condition upon the part of the persons in charge of the building. The tendency of water falling upon a sidewalk in the winter season to freeze and produce a condition dangerous to passers-by is of course familiar to every person. Whether in the situation presented by the evidence reasonable care required those in charge of the building to take steps to prevent the water dripping upon the sidewalk from an accumulation of snow upon the coping and cornice, either by clearing it off or by affording means by which the water would be drained away, would, upon the evidence as it stood when the nonsuit was granted, be a question upon which the plaintiff had a right to go to the jury. Kane v. New Idea Realty Co., 104 Conn. 508, 514, 133 A. 686. Virtually the same situation exists as to the plaintiff's claim that the maintenance of the building in such a way as naturally to produce a condition dangerous to passers-by in the street constituted a nuisance. Ruocco v. United Advertising Corporation, 98 Conn. 241, 247, 119 A. 48, 30 A.L.R. 1237; Hanlon v. City of Waterbury, 108 Conn. 197, 200, 142 A. 681; Spagnolo v. Lanza, 110 Conn. 178, 181, 147 A. 594; Leahan v. Cochran, 178 Mass. 566, 570, 60 N.E. 382, 53 L.R.A. 891, 86 Am.St.Rep. 506; Maloney v. Hayes, 206 Mass. 1, 91 N.E. 911, 28 L.R.A. (N. S.) 200; Brown v. White, 202 Pa. 297, 51 A. 962, 58 L.R.A. 321. Marston v. Phipps, 209 Mass. 552, 95 N.E. 954, 955, presented almost the same situation. There the plaintiff slipped upon a ridge of ice alleged to have been formed by water dripping from the roof of a bay window which overhung the sidewalk, and there was evidence from which the jury might have found that the roof projected so that snow would and did accumulate upon its top and there melt and drip upon the sidewalk and freeze; the trial judge directed a verdict for the defendant, and the Supreme Judicial Court held this to be error, saying: " The case would come under the principle that one who so constructs or maintains a structure upon his own premises as to cause an artificial discharge or accumulation of water upon a public way, which by its freezing makes the use of the way dangerous, will be held liable to one who, being rightfully upon the way and in the exercise of due care, is injured in consequence of such dangerous condition." Upon the issue of the liability for the maintenance of the building in the way in which it was constructed the plaintiff was, as the evidence stood when the nonsuit was granted also entitled to go to the jury.

Under the final aspect of the complaint, the plaintiff does not assert a claim of liability upon the part of the defendants based merely upon the fact that the sidewalk was defective due to the ice upon it, but her contention is that they maintained the building in such a way as to create a dangerous condition upon the sidewalk and were therefore obligated to use reasonable care to protect persons passing along it from injury caused thereby. If one by his acts creates a dangerous condition in a highway, or so conducts his own affairs that such a condition follows and he has notice of it, he is under a duty to use reasonable care to protect travelers from it; the liability for failure to do so does not arise out of the fact that the highway is defective, but out of the duty resting upon him to guard persons subjected to danger by his act. City of Waterbury v. Clark, 91 Conn. 254, 257, 99 A. 578; Wright v. Blakeslee, 102 Conn. 162, 128 A. 113; Hanlon v. City of Waterbury, 108 Conn. 197, 201, 142 A. 681; Trasacco v. New York, N.H. & H. R. Co., 113 Conn. 355, 155 A....