City of Waterbury v. Clare

• Decision Date: 05 January 1917
• Parties: CITY OF WATERBURY v. CLARE.
• Court: Connecticut Supreme Court

99 A. 578

91 Conn. 254

CITY OF WATERBURY

v. CLARE.

Supreme Court of Errors of Connecticut.

Jan. 5, 1917.

Appeal from Superior Court, New Haven County; Howard J. Curtis, Judge.

Action by the City of Waterbury against George B. Clark. Judgment for defendant, and plaintiff appeals. No error.

Francis P. Guilfoile, of Waterbury, for appellant. Omar W. Platt, of Milford, for appellee.

RORABACK, J. This is an action to recover damages which the plaintiff has been compelled to pay on account of personal injuries sustained by one Mary Rigney by means of a defective sidewalk in front of the defendant's premises.

It is alleged in the present action that Mrs. Rigney was injured and suffered damages by falling on this sidewalk; that her falling was caused by stepping into an open sewer box which made the sidewalk at this point unsafe. The complaint also stated, in substance, that this sewer box was the property of the defendant; that it was his duty to maintain the same in a safe condition; that the plaintiff city had been compelled to pay $1,000 damages in consequence of a judgment obtained against it by Mary Rigney as a result of an injury which was sustained by reason of the defendant's negligence in allowing the sewer box to remain in a dangerous and defective condition; and that the defendant Clark had been notified of the previous action of. Mary Rigney against Waterbury after her suit had been commenced. It appears that the city alone defended this action.

The reasons of appeal present in various forms certain questions as to the degree of care which the defendant was bound to exercise in the care of the sidewalk where this accident occurred. Upon this point, in the trial of the case in the court below, the jury were instructed that the questions to be determined in this action were as follows:

"First, did the defendant, Mr. Clark, at and before the time of Mrs. Rigney's fall, owe any duty toward travelers on that street to use reasonable care to keep that sewer box in reasonably safe condition as to travelers passing along that street? Second, did Mr. Clark, if he owed such a duty, fall to perform the duty resting upon him, and so cause the injury to Mrs. Rigney? The first question I consider under the undisputed facts in the case one of law for the court to determine, and so I charge you that at and before the time of Mrs. Rigney's fall it was the duty of Mr. Clark, the owner of the building adjacent to the sidewalk in question, to use reasonable care to keep that sewer box in such condition that the sidewalk would be reasonably safe for travel as far as that sewer box was concerned."

To this portion of the charge the plalntiff now objects. It is claimed that the jury should have been instructed, in effect, that reasonable care meant extraordinary care, and that it was the duty of the defendant to keep the box at all times safe and secure, and to make continuous inspection for the purpose of ascertaining latent as well as apparent defects. The court, after using the language above criticized, also stated to the jury that:

"As I charged you before it was the duty of Mr. Clark to use reasonable care to keep that sewer box in a condition that would make travel on that sidewalk reasonably safe for travelers. This duty imposed upon him is the duty of using reasonable care; that is, such care as a man of ordinary prudence would have used in the same situation to keep himself informed of the condition of this sewer box."

These statements of the trial court were not only correct, but such as should have been made for the proper guidance of the jury in their deliberations upon this subject. Chicago v. Robbins, 2 Black, 418, 420, 17 L. Ed. 298, 304; Port Jervis v. First National Bank, 96 N. Y. 550; Morris v....