Edgecomb v. Great Atlantic & Pacific Tea Co.

• Decision Date: 07 February 1941
• Citation: 18 A.2d 364,127 Conn. 488
• Parties: EDGECOMB v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: Connecticut Supreme Court

18 A.2d 364

127 Conn. 488

EDGECOMB v. GREAT ATLANTIC & PACIFIC TEA CO.

Supreme Court of Errors of Connecticut.

February 7, 1941

Appeal from Superior Court, New London County; William H. Comley Judge.

Action by Nellie M. Edgecomb against the Great Atlantic & Pacific Tea Company, for personal injuries alleged to have been caused by defendant's negligence. From a decision setting aside verdict for the plaintiff, the plaintiff appeals.

Error and case remanded for entry of judgment on the verdict.

BROWN and ELLS, JJ., dissenting.

John T. Allen, of New London, for appellant (plaintiff).

Charles V. James, of Norwich (Arthur M. Brown, of Norwich, on the brief), for appellee (defendant).

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

JENNINGS Judge.

The plaintiff was injured when, forced toward the outer edge of the sidewalk by an obstruction placed thereon by the defendant, she stepped into a depression in the walk. The only error assigned is the granting of the motion to set aside the verdict. The question to be decided is whether the jury could reasonably have found the acts of the defendant to be the proximate cause of the plaintiff's injury.

While the evidence is fairly extensive, there is no serious dispute about the material facts. The defendant operates a super market on the northerly side of Bank Street in New London. A concrete sidewalk covers the space from the front of the store to the street. It is about ten feet wide and slopes downward from west to east. A rough, depressed area adjoins the curb. This area is about eight feet long, two feet wide and its average depth is about one and one-half inches.

The accident took place at 4:30 o'clock on a pleasant summer afternoon. The defendant had received a shipment of potatoes in one hundred pound burlap bags. These were so piled on the sidewalk in front of the store as to leave only about three feet clear between the curb and the bags and one foot between the depression and the bags. A clerk was engaged in transferring the potatoes from the large burlap to small paper bags. Further along, a large truck was unloading merchandise for the store. The plaintiff, intending to enter the store, walked down the middle of the Bank Street sidewalk with a friend. She was on the curb side. She had to turn toward the street because of the obstructions, stepped into the depression, fell and was injured. She knew of the depression but her attention was attracted by the man working on the potatoes and by the truck. As she put it, ‘ because we were looking out for the man who was stooping, we didn't want to knock him over.’

The memorandum on the motion to set aside the verdict reads in part as follows: ‘ The plaintiff has furnished ample authority for the proposition that the determination of proximate cause may be a question of fact. But here there is no difficulty about the fact. The question whether an act is the cause of a condition which follows in close proximity in point of time or place is a question of logic. If the logical answer is that it was not the cause but only the occasion, no verdict of a jury can furnish a different answer.’

In passing it may be noted, as pointed out in the dissenting opinion in Mahoney v. Beatmen, 110 Conn. 184, 204, 147 A. 762, 66 A.L.R. 1121, that in submitting the question of proximate cause to a jury, pure logic is not always a sure guide. Restatement, 2 Torts, § 431, Comment (a). It is, after all, a practical question and one of fact for the jury under proper instructions unless it can fairly be said that reasonable men could not reasonably find that the causal relation existed. Mahoney v. Beatman, supra, 110 Conn. at page 197, 147 A. 762, 66 A.L.R. 1121; Corey v. Phillips, 126 Conn. 246, 254, 10 A.2d 370. " To constitute such causal relation between defendant's tort and plaintiff's damage as will suffice to maintain an action of tort, the defendant's tort must have been a substantial factor in producing the damage complained of." Mahoney v. Beatman, supra, 110 Conn. at page 195, 147 A. at page 766, 66 A.L.R. 1121. As noted in the quotation from the memorandum of decision, the verdict was set aside because it was the view of the trial court that the negligent act of the defendant was the occasion rather than the cause of the plaintiff's injuries. ‘ Occasion’ is the equivalent of the term ‘ condition,’ more usual in our decisions. As stated in Kinderavich v. Palmer, 127 Conn. 85, 96, 15 A.2d 83, 89, ‘ The statement that an act or omission is a condition and not a cause of an occurrence from which injury results means no more than that it is not a proximate cause of that occurrence.’ No question was raised as to either the due care of the plaintiff or the negligence of the defendant. This limitation, therefore, brings us back to the fundamental question stated above, could reasonable men reasonably find that the negligent act was a substantial factor in causing the plaintiff's injuries?

The plaintiff's injuries did not result from the actual application of force to her person by the defendant. It established and maintained a dangerous condition which caused her fall in the manner described. Clerk & Lindsell, Torts 7th Ed., 503. In ...