Corcoran v. City of New Haven

• Decision Date: 18 June 1928
• Citation: 142 A. 569,108 Conn. 63
• Court: Connecticut Supreme Court
• Parties: CORCORAN v. CITY OF NEW HAVEN ET AL.

142 A. 569

108 Conn. 63

CORCORAN v. CITY OF NEW HAVEN ET AL.

Supreme Court of Errors of Connecticut.

June 18, 1928

Appeal from Superior Court, New Haven County; Christopher L. Avery Judge.

Action by Catherine J. Corcoran against the City of New Haven and another to recover damages for personal injuries alleged to have been caused by a defect in the highway. Verdict and judgment for the plaintiff, and appeal by defendant. Error and new trial ordered.

Louis Feinmark, of New Haven, for appellant City of New Haven.

Charles S. Hamilton, of New Haven, for appellee, plaintiff.

Thomas R. Robinson and Vincent P. Dooley, both of New Haven, for appellees Gesuele and Maria Damato.

Argued before MALTBIE, HAINES, HINMAN, BANKS, and WOLFE, JJ.

BANKS J.

The plaintiff brought this action against the city of New Haven to recover damages for personal injuries suffered by her as a result of tripping over a wire which was stretched around a grass plot between the sidewalk and the curb in front of property owned by the defendants Damato in the city of New Haven. Under and by virtue of a charter provision the city cited in the defendants Damato as codefendants and filed a cross-complaint in which it sought to recover from them any damages for which it might be held liable to the plaintiff. The plaintiff and her sister, who live on Dorman street in New Haven, alighted from a trolley car on Dixwell avenue at the corner of Dorman street, which intersects Dixwell avenue from the west but does not cross it. It was between 9 and 10 p. m. and raining, and plaintiff and her sister ran from the car to the east curb of Dixwell avenue at a point in front of the house owned by the defendants Damato which was about opposite Dorman street. On the east side of Dixwell avenue there is a sidewalk of concrete about 7 feet wide and between this and the curb a grass plot about 14 feet wide. In front of the entrance to the Damato house there is a concrete walk about 4 feet wide from the concrete sidewalk to the street. About 9 feet north of this there is a concrete driveway about 8 feet wide, and about 20 feet south of the 4-foot walk there is another concrete driveway about 8 feet wide. There is a row of large elm trees in the grass plots along the east side of the street. About two months before the accident to the plaintiff the son of the defendants Damato had sowed the two plots in front of their house with grass seed, and had strung a copper wire around them attached to stakes about 12 inches from the ground. When the plaintiff and her sister reached the curb there was a man standing on the 4-foot walk which led from the curb to the concrete sidewalk in front of the Damato house, and they attempted to reach the sidewalk by crossing the grass plot north of this walk. In doing so they tripped over the wire which was stretched around it and fell, the plaintiff receiving the injuries for which she is seeking to recover. Upon these facts, as to which there was no serious dispute, the city claimed that as a matter of law the plaintiff's injuries were caused by her own negligence and that the city had violated no duty which it owed her. It further claimed that the charge of the court failed to give the jury proper instructions as to the respective obligations of the parties under the circumstances disclosed by the evidence.

The principal question here involved is as to the nature and extent of the duty owed by a municipality to a traveler upon its streets with respect to that portion of the street between the sidewalk and the curb which it has permitted to be devoted to ornamentation rather than travel. Many of our residential streets are so laid out that there are grass plots between the sidewalk and the curb sometimes of considerable width, which not infrequently contain trees, flowers, or ornamental shrubs which serve the purpose of making the street more attractive to those who live upon it or pass through it. These areas so devoted to ornamentation are still a part of the highway, and the municipality is bound to use reasonable care to keep them in reasonably safe condition for travelers. It is obvious, however, that the duty resting upon the city with regard to the maintenance of such areas, and that resting upon a traveler upon the street with regard to their use, are quite different from those imposed upon them with regard to the traveled portion of the street or sidewalk. The general proposition that the public is entitled to the free use of any portion of a public street must be accepted, with the qualification that certain portions of it may for the benefit and convenience of the public be devoted to other purposes than travel. When this is done with due regard to making the traveled part of the highway adequate and reasonably safe, the result is to warn travelers to take the ways provided and to segregate the parts reserved from general travel use. Since it is not intended that there shall be travel upon such areas, objects may be maintained upon them which would be obstructions if they were upon the traveled portion of the street, and since the public are not expected to pass over such areas, they may be protected and guarded against use by travelers by suitable guards, and proper barriers for that purpose are not obstructions or nuisances if they are not maintained so as to become dangerous to travelers. Dougherty v. Village of Horseheads, 159 N.Y. 154, 53 N.E. 799; Teague v. Bloomington, 40 Ind.App. 68, 81 N.E. 103; 20 L.R.A. (N. S.) 593; Barnesville v. Ward, 85 Ohio.St. 1, 96 N.E. 937, 40 L.R.A. (N. S.) 94, Ann.Cas. 1912D, 1234; 13 R. C. L. 260. Travelers who leave the way provided for them and attempt to cross a plot devoted to ornamentation may not assume that it is free of obstructions as they may do in the use of the traveled portion of the highway. They must exercise due care to discover obstructions since they cannot assume that they do not exist. Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797, 802; Raymond v. Lowell, 6 Cush. (Mass.) 524, 531, 53 Am.Dec. 57; 13 R. C. L. 469.

The attempt of the plaintiff to cross from the curb to the sidewalk by passing over this...