Feeney v. New York Waist House

• Decision Date: 05 March 1927
• Citation: 105 Conn. 647,136 A. 554
• Court: Connecticut Supreme Court
• Parties: FEENEY v. NEW YORK WAIST HOUSE.

136 A. 554

105 Conn. 647

FEENEY v. NEW YORK WAIST HOUSE.

Supreme Court of Errors of Connecticut.

March 5, 1927

Appeal from Court of Common Pleas, Hartford County; Thomas J Molloy, Judge.

Action by Mary J. Feeney against the New York Waist House, to recover damages for personal injuries alleged to have been caused by defendant's negligence in maintaining a show window which fell upon plaintiff. From a judgment for defendant, plaintiff appeals. Error, and new trial awarded.

Doctrine of res ipsa loquitur held applicable, where show window fell on pedestrian during heavy wind.

Edward H. Kelly and Joseph H. Lawler, both of Hartford, for appellant.

Warren Maxwell, of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES HINMAN, and BANKS, JJ.

HINMAN, J.

On November 22, 1924, as the plaintiff was passing along the sidewalk on Main street in Hartford opposite the premises occupied by the defendant, the glass from a large show window in front of the store fell upon and injured her. The complaint alleged that the occurrence and resulting injuries were caused by the negligence of the defendant in inspecting and maintaining the window.

The trial court held that the defendant was not negligent in the respects alleged, and that the sole cause of the fall of the glass was a wind so heavy that such fall would have occurred in any event, irrespective of the construction and care in maintenance of the window. The finding states, in substance that there was, at the time, a windstorm of unusual severity, during which 26 lights of glass were blown out in the vicinity of Hartford, 15 of them within the city limits, which amount of breakage was unusual, although after an ordinary windstorm a few glass windows have to be replaced, the number depending on the severity of the storm. It is further found that this wind was of sufficient severity to produce the accident, no matter what the construction and no matter what care might have been taken, and was an act of God, but this paragraph is attacked by the appeal, and is not supported by the evidence contained in the record, nor can it legitimately be inferred from the other facts found.

It is manifest, we think, that the inference is not necessary nor logically permissible that a wind, the only indication of the severity of which is that the stated number of other lights of glass (of unknown sizes, locations, method of installation, and state of repair) fell in the same storm, would have blown out the glass in question whatever the construction of the window or its state of repair. The facts found not only do not justify this inference, but are not adequate to bring the windstorm in question within the legal conception of such a manifestation of the forces of nature as would, of itself, as an act of God, exonerate the defendant from liability. This has been defined to be a misfortune or accident arising from inevitable necessity, which human prudence could not foresee or prevent. Williams v. Grant, 1 Conn. 487, 491, 7 Am.Dec. 235; 5 Thompson on Negligence, § 6456; 1 Words and Phrases, Second Series, 70; 29 Cyc. 441; Gray v. Harris, 107 Mass. 492, 9 Am.Rep. 61; Pittsburgh R. Co. v. Brigham, 29 Ohio.St. 374, 23 Am.Rep. 751.

The further finding, that the wind was the sole cause of the fall of the glass, lacks support from the evidence and cannot reasonably and logically be deduced from the other facts found. It appears that the window was originally properly constructed; the date when it was...