Chazen v. City of New Britain

• Decision Date: 02 May 1961
• Citation: 148 Conn. 349,170 A.2d 891
• Court: Connecticut Supreme Court
• Parties: Daniel CHAZEN v. CITY OF NEW BRITAIN. Supreme Court of Errors of Connecticut

Page 891

170 A.2d 891

148 Conn. 349

Daniel CHAZEN v. CITY OF NEW BRITAIN.

Supreme Court of Errors of Connecticut.

May 2, 1961.

Frank DeNezzo, Hartford, for appellant (plaintiff).

Paul J. McQuillan, corporation counsel, New Britain, for appellee (defendant).

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

SHEA, Associate Justice.

The plaintiff brought this action to recover damages for injuries which he sustained as a result of a fall on a public highway in the defendant city. The first count of his complaint is based on what is now General Statutes, § 13-11, which provides for the recovery of damages by a person injured by means of a defective road. The second court is based on nuisance. The court rendered judgment for the defendant and the plaintiff has appealed.

Grand Street in the city of New Britain runs in an easterly and westerly direction. It is an accepted street, although there is no record of the establishment of its street lines. A city block map, not intended to show these lines, indicates that the street is fifty feet wide. The paved surface for vehicular traffic is twenty-nine feet wide. There are no sidewalks or curbs in the area where the plaintiff fell. To the north and above the grade of Grand Street in this area, there is a public park. On a grassy embankment descending from the edge of the park to the street, there is a shallow concave trough or drain constructed of amesite about 34 inches wide and about 2.5 inches deep. The drain was made to carry surface water down the grade to a catch basin located at the edge of the street pavement. About five feet to the west of this drain, there is a parking space contiguous to the north edge of the paved surface of the street. Unmowed grass and weeds covered the space between the drain and the parking space. East of the drain, separated from the paved surface of the street by unmowed grass and weeds, there is a small area filled with cobblestones which are partially covered with amesite and which were placed there for drainage purposes and to prevent erosion. The paved surface of Grand Street and the parking space are maintained by the public works department of the city, while the park and the area to the north of the paved surface are maintained by the park department.

On July 14, 1956, about 12 o'clock noon, the plaintiff, who was not familiar with this section of New Britain, parked his car in the parking space. The passengers in his car got out and walked easterly along the paved surface of the street. The plaintiff left his car and started to walk easterly along the embankment and across the grass area. He stepped on the drain, his left leg buckled under him and he fell to the ground, sustaining the injuries for which he has brought this action. The place where he fell was within the street limits. In taking the route he did, he chose to cross an area which was not intended for pedestrian travel. On these facts, the court concluded that the conditions existing on the street where the plaintiff fell did not constitute a defective road or a nuisance, and that the plaintiff himself did not exercise the care of a reasonably prudent person under the circumstances.

The plaintiff claims that the uncontradicted testimony of an expert witness was controlling on the court and that therefore certain facts should be added to the finding. A fact not contradicted does not necessarily become an undisputed fact which is required to be added to the finding. Practice Book, § 397; Corsino v. Grover, 148 Conn. 299, 170 A.2d 267. The trier is final judge of the credibility of a witness and may disbelieve all or any part of his testimony. Humphrey v. Argraves, 145 Conn. 350, 355, 143 A.2d 432. The fact that the defendant produced no witness to contradict the testimony of the plaintiff's expert or that the expert's opinion was unchallenged did not make that opinion binding on the court. Clark v. Haggard, 141 Conn. 668, 674, 109 A.2d 358, 54 A.L.R.2d 655. The finding is not subject to correction.

The court found that the conditions existing in the street where the plaintiff fell did not constitute a defect under the statute. Such a defect has been defined as follows: 'Any object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result, would generally constitute a defect in the highway.' Hewison v. New Haven, 34 Conn. 136, 142; Hay v. Hill, 137 Conn. 285, 288, 76 A.2d 924. It is true that there may be situations where the source of danger, although situated without the way, is of itself so direct a menace to travel over the way and so susceptible to protection or remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a failure to exercise reasonable care to keep the highway reasonably safe. Hay v....