Fabrizi v. Golub

• Decision Date: 12 June 1947
• Citation: 55 A.2d 625,134 Conn. 89
• Parties: FABRIZI v. GOLUB et al.
• Court: Connecticut Supreme Court

134 Conn. 89

55 A.2d 625

FABRIZI

v.GOLUB et al.

Supreme Court of Errors of Connecticut.

June 12, 1947.

Appeal from Superior Court, Hartford County; Alcorn, Judge.

Action by Robert Fabrizi against Max Golub and others to recover damages for personal injuries, alleged to have been caused by a defect in a highway of the defendant city of Hartford and by the negligence of the other defendants and by a nuisance created by them, brought to the Superior Court and tried to the jury before Alcorn, J. Verdict and judgment for the plaintiff against the defendant city only, and appeal by the city and by the plaintiff.

Error and case remanded with direction.

The plaintiff and the defendants Golub filed motions for reargument which were denied.

Morton E. Cole and Milton Krevolin, both of Hartford (Cyril Cole and Arthur W. Feinstein, both of Hartford, on the brief), for plaintiff.

William J. Galvin, Jr., and Frank A. Murphy, Asst. Corp. Counsels, both of Hartford (Samuel H. Aron, Corp. Counsel, of Hartford, on the brief), for City of Hartford, defendant.

M. J. Blumenfeld, of Hartford, for defendant Golub.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MARLTBIE, Chief Justice.

The plaintiff in this action, a three-year-old child, sought to recover damages for injuries suffered when he fell into the well of a stairway located in a sidewalk in the city of Hartford adjacent to the property of Max and Freida Golub. The Golubs and the city were made defendants. The complaint, as amended, was in three counts: One charged the Golubs with negligence; another charged them with the creation or maintenance of a nuisance; and the third sought recovery from the city upon the ground of a defect in the highway. The jury rendered a verdict in favor of the plaintiff against the city, but in favor of the Golubs. The plaintiff and the city have appealed.

One ground of the city's appeal is the denial by the trial court of its motion to set the verdict aside. There is little dispute as to the facts. The Golubs owned a building on the east side of Windsor Street in Hartford. It is in an area of congested population. In the basement was a store or stockroom which was entered by means of an outside stairway. The stairs starting from the north ran down to a depth of about five feet. The wall of the building was about six inches outside the street line and the stair well extended into the sidewalk about four feet. When the Golubs bought the property in 1940 there was a stairway leading to an upper story of the building at the south end of the stair well, and an iron fence with three rails ran from it along the outer wall of the stair well. In 1941 they removed the stairway to the upper story and the fence was then extended across the south end of the stair well. Some months before the plaintiff fell into it, an automobile ran across the sidewalk, struck the north end of the fence and broke two sections into pieces. Thereafter, Max Golub tied up pieces of the fence with rope in such a way that it afforded much less protection to travelers on the sidewalk than it had before. Two or three weeks before the accident to the plaintiff, one of the rails Golub had tied up became displaced so that it extended beyond the wall of the stair well onto the sidewalk. The plaintiff either alighted from a tricycle near the curb, walked towards the stair well, tripped on this rail and fell into the stair well or fell directly into it from the tricycle. The only witness who testified as to the position of the rail pointed out on a photograph in evidence where the end rested, but on the record before us we are not able to determine how far out it extended.

The city, in support of its claim of error in the denial of the motion to set the verdict aside, asserts that all through the proceeding, and before this court, the plaintiff has taken and is taking wholly inconsistent positions in claiming damages from the Golubs on the ground of negligence and nuisance and at the same time seeking a recovery against the city on the basis of a defect in the sidewalk. In its brief the city discusses the case as one in which the plaintiff should have been required to elect to proceed against either it or the Golubs. As far as the record before us shows, no claim that the plaintiff should be compelled to elect was made at the trial. Whether the case is one in which an election should be required, and, if so, whether we could give effect to any right the city had in this regard in an appeal from the denial of its motion to set the verdict aside, we have no need to consider. An appeal from a ruling upon such a motion presents the broad question whether the action of the trial court can be sustained on any ground, and we are not bound to follow any particular theory advanced by the parties. Morrell v. Wiley, 119 Conn. 578, 581, 178 A. 121; Grzys v. Connecticut Co., 123 Conn. 605, 614, 198 A. 259; see Leahy v. Chency, 90 Conn. 611, 618, 98 A. 132, L.R.A.1917D, 809. The difficulty with the verdict goes deeper than the matter of election. The question, as discussed in the oral argument before us, is: Was a decision in favor of the Golubs so inconsistent with one against the city that the verdict cannot stand?

The trial court submitted to the jury for their determination the issue whether the Golubs were so in control of the stair well and the fence as to be liable for any injury resulting from them, and, if the jury could properly have found that the Golubs were not so in control, the verdict, general in form, would not necessarily be inconsistent in finding for them and against the city, because the decision in their favor might have been upon that ground. The stairway was, however, an adjunct to the property of the Golubs; when the fence about it became broken, they were the persons who took steps to remedy the condition; in the absence of any evidence to the contrary, it must be assumed that they owned the land to the middle of the street and the stairway was on their property. Allen v. Mussen, 129 Conn. 151, 155, 26 A.2d 776. There was no evidence that the city had ever issued a permit for the existence of the stair well; its building department had, it is true, approved plans for alterations in the building, including the removal of the outer stairway to which we have referred, and on those plans the stair well appears; but it was not in the power of that department to act for the city in authorizing its maintenance. 23 Sp.Laws 1248 et seq. There was no basis in the evidence from which the jury could find that the city ever asserted or exercised any actual control over it. Upon these facts, there is no reasonable escape from a conclusion that the Golubs were maintaining the stair well, and they would be liable if they were guilty of negligence in respect to it, or it constituted a nuisance, as a result of which a traveler on the sidewalk suffered an injury. Oneker v. Liggett Drug Co., 124 Conn. 83, 86, 197 A. 887; Trustees of Village of Canandaigua v. Foster, 156 N.Y. 354, 359, 50 N.E. 971, 41 L.R.A. 554, 66 Am.St.Rep. 575; Magay v. Claflin-Summer Coal Co., 257 Mass. 244, 246, 153 N.E. 534, 53 A.L.R. 928.

The test for determining liability for nuisance is: Did the condition have a natural tendency to create danger and inflict injury upon person or property? Hoffman v. City of Bristol, 113 Conn. 386, 389, 155 A. 499, 75 A.L.R. 1191. The general test for determining whether there is a defect in the highway is: Was the condition such that it would necessarily obstruct or hinder one in the use of the highway for the purpose of traveling or be likely, from its nature or position, to produce that result or injury to one so traveling? Older v. Town of Old Lyme, 124 Conn. 283, 284, 199 A. 434. While there may be situations where the application of these tests would produce different results, in the case before us no distinction can be drawn. See Allen v. Mussen, supra. If the stairway with the fence about it constituted a defect in the highway, as regards the city, it is not possible to escape the conclusion that it also constituted a nuisance as regards the Golubs. Capozzi v. City of Waterbury, 115 Conn. 107, 111, 160 A. 435; Andrews v. City of Bristol, 120 Conn. 499, 502, 181 A. 624; Przwgocki v. Wikris, 130 Conn. 419, 423, 34 A.2d 879. The jury, in finding in favor of the Golubs and against the city, took a position which, on the evidence, was wholly inconsistent and which they could not reasonably reach. If the city was liable because the sidewalk was defective by reason of the stairway and the fence, the Golubs could not reasonably be found not to be liable for the maintenance of a nuisance. This inconsistency requires that the verdict be set aside. O'Brien v. Connecticut Co., 97 Conn. 419, 422, 117 A. 498; see 53 Am.Jur. 725. That the court, by submitting to the jury the issue of control of the stairway and fence may have contributed to that result cannot alter the legal effect of the evidence, upon the basis of which we must determine the motion to set the verdict aside. Conn.App.Proc. § 115.

In view of our decision that the verdict should have been set aside in its entirety and that we must order a new trial, it seems desirable to consider an error the city assigns in its appeal from the judgment. It is the claimed failure of the trial court to give a requested charge which was in substance that, as there was no evidence that the city created any nuisance, it would be liable only under the statute which provides that ‘any person injured in person or property by means...