Campbell v. City of New Haven

• Citation: 78 Conn. 394,62 A. 665
• Court: Supreme Court of Connecticut
• Decision Date: 15 December 1905
• Parties: CAMPBELL v. CITY OF NEW HAVEN.

62 A. 665

78 Conn. 394

CAMPBELL

v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

Dec. 15, 1905.

Appeal from Superior Court, New Haven County; William S. Case, Judge.

Action by Mae J. Campbell against the city of New Haven. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Leonard M. Daggett, for appellant Robert C. Stoddard, for appellee.

PRENTICE, J. The plaintiff sued to recover for personal injuries sustained by a fall upon a sidewalk in one of the defendant's streets alleged to have been defective and out of repair by reason of snow and ice thereon. Upon the hearing in damages, after a default, the condition of the walk on February 13, 1904, the day before the accident, became the subject of inquiry and a material one. The defendant presented as one of its witnesses a policeman within whose beat the place of accident was, and whose duty it was to see that property owners kept their walks in proper condition. He testified to the conditions which had existed with respect to the walk in question for several days prior to said February 13th and especially upon that day. After stating these conditions in detail and fully as he observed them, he was asked whether or not the walk when be saw it on February 13th was in a reasonably safe condition for public travel. Upon objection that the question called for the expression of an opinion, it was excluded. This ruling was accompanied by the observation on the part of the court that the question put to the witness was one for it, and the direction that the witness' testimony be confined to a statement of what he saw.

The objection and ruling were made under a misapprehension of the rule in this jurisdiction. Whatever may have been elsewhere held, it has been well settled by long practice and repeated decisions in this state that the defendant was entitled to have its question answered. Porter v. Pequonnoc Mfg. Co., 17 Conn. 249; Dunham's Appeal, 27 Conn. 192; Sydleman v. Beckwith, 43 Conn. 9; Taylor v. Town of Monroe, Id. 36; Ryan v. Town of Bristol, 63 Conn. 26, 27 Atl. 309; Dean v. Town of Sharon, 72 Conn. 667, 45 Atl. 963. It is quite possible that the answer of this witness, if received, would not have influenced the conclusion of the court. In fact the finding contains an intimation that by reason of the large extent of sidewalk which came under the witness' oversight, and of the fact that his recollection of this particular walk was one for which he was largely dependent upon his memorandum book entries, such might have been the case. But we cannot, nevertheless, for reasons well stated in Peck v. Pierce, 63 Conn. 310, 28 Atl. 524, so far enter into the mind of the court and forecast its possible operations as to say that it would not have been influenced by an opinion from the witness which it never heard and weighed. Rooney v. Woolworth, 74 Conn. 720, 52 Atl. 411. Neither can we say that the defendant was not by the ruling, and possibly others of the same character not repeated upon the record, deterred from presenting opinion evidence of such convincing character that the action of the court would have been controlled thereby....