Feir v. Town and City of Hartford

• Decision Date: 13 July 1954
• Citation: 106 A.2d 723,141 Conn. 459
• Court: Connecticut Supreme Court
• Parties: FEIR v. TOWN AND CITY OF HARTFORD et al. Supreme Court of Errors of Connecticut

Page 723

106 A.2d 723

141 Conn. 459

FEIR v. TOWN AND CITY OF HARTFORD et al.

Supreme Court of Errors of Connecticut.

July 13, 1954.

Valentine J. Sacco, Hartford, Frank D. Gorman, Hartford, Jacob Dunn, Hartford, on the brief, for appellant (plaintiff).

Delancey Pelgrift, Hartford, Robert E. Cohn, Hartford, on the brief, for appellee (defendant Dobin).

Before INGLIS, C. J., and O'SULLIVAN, WYNNE and DALY, JJ.

WYNNE, Associate Justice.

The plaintiff brought this action to recover damages for personal injuries alleged to have been caused by a fall on premises at 12 Kilbourn Street in the city of Hartford. Three defendants were named in the writ--the town and city of Hartford, Concetta Rafala, who was the owner of the premises where the fall occurred, and Myer Dobin, who conducted a wholesale fruit and vegetable business on them. The case was tried to the jury but was submitted only as against Dobin, as the defendant in sole charge of the premises. The defendant Rafala was dropped in writing a few days after the jury returned their verdict, and the plaintiff's brief indicates that the town and city of Hartford was also dropped as party defendant on the plaintiff's motion, although this was not followed by a formal withdrawal. The action, however, continued against the defendant Dobin, and a verdict against him was returned by the jury. This was set aside by the court, and it is from this decision that the plaintiff has appealed, assigning as error that the verdict is supported by the evidence.

There follows a brief summary of facts which the appendix filed shows the jury could have found: The defendant had conducted a wholesale fruit and vegetable business at the premises in question from 1946 up to, and including May 10, 1949, the date of plaintiff's fall. He maintained a ramp in front of his place of business to afford entrance and egress to and from his store. The ramp had been constructed by one of his men, was movable, not being attached permanently to the concrete step at the sidewalk entrance to his doorway, and had been in use daily six days a week from a year to a year and a half prior to the date of plaintiff's accident. In the conduct of his business, the defendant purchased broken crates of salvaged merchandise, and on every day of business all kinds of merchandise were piled on the sidewalk and entrance outside his store. There was a recessed concrete step at the doorway, and the ramp extended from the top of the step to the sidewalk. It was forty inches long and thirty-six inches wide and was constructed of wooden planks held together by a cross brace. On the surface of the ramp were wooden cleats to facilitate the movement of store trucks or dollies up and down it. The cleats were about two inches wide and one inch in height. The ramp was worn, and a triangular piece of the second plank in from what was the outer west corner was broken away and missing. On the date in question, the plaintiff entered defendant's store, walking up the ramp, and purchased two flats of tomatoes. As he walked out with the tomatoes under his left arm, he stubbed his left toe against the top cleat of the ramp, his right foot slid all the way down the ramp and he fell back on his left knee, which was stuck on the cleat. At the time of the accident it was a drizzly morning. On the ramp were lettuce leaves. The plaintiff sustained serious injuries as a result of the fall and has been partially incapacitated as a result.

The motion to set aside the verdict was predicated upon the claim that it was contrary to law and against the evidence. The court's memorandum indicates that the verdict was set aside because the plaintiff's conduct was negligent as a matter of law. This conclusion was based on two Connecticut cases. Ssebridge v. Poli, 98 Conn. 297, 119 A. 214, and Farkas v. Halliwell, 136 Conn. 440, 72 A.2d 648. The first of these dealt with a large weighing scale and the other with a cow, each of which was in plain view and would have been very obvious to the most casual observer. Ordinarily a conclusion of negligence or of freedom from it is one fact. Farkas v. Halliwell, supra, 136 Conn. 445, 72 A.2d 648.

For the plaintiff's conduct to constitute contributory negligence as a matter of law, it must appear as a matter of law not only that no reasonably prudent person would have failed to observe the defect but also that no reasonably prudent person would have failed to appreciate that risk or danger might result from the use of the ramp in its defective condition. Corrievau v. Associated Realty Corporation, 122 Conn. 253, 258, 188 A. 436, and cases cited. Under the circumstances of this case, it was for the jury to say whether a reasonably prudent person in the plaintiff's place, observing, as the trial court held the plaintiff should have, that there was a cleat at the point where he put his foot, would also have appreciated that the existence of the cleat there would be a source of danger to him.

The court's action in setting aside the verdict must be tested by the evidence most favorable to the plaintiff. Sanderson v. Bob's Coaster Corporation, 133 Conn. 677, 678, 54 A.2d 270; Maltbie, Conn.App.Proc., § 114(c), p. 152.

The jury reasonably could have found the facts in this case in accordance with the summary given at the outset of this opinion. The wet...