Fitzmaurice v. Connecticut Ry. & Lighting Co.

• Citation: 62 A. 620,78 Conn. 406
• Court: Supreme Court of Connecticut
• Decision Date: 15 December 1905
• Parties: FITZMAURICE v. CONNECTICUT RY. & LIGHTING CO.

62 A. 620

78 Conn. 406

FITZMAURICE

v. CONNECTICUT RY. & LIGHTING CO.

Supreme Court of Errors of Connecticut.

Dec. 15, 1905.

Appeal from Superior Court, New Haven County; Silas A. Robinson, Judge.

Action by Vera Fitzmaurice, by her next friend, against the Connecticut Railway & Lighting Company, for injuries resulting from defendant's alleged negligence. From a judgment for defendant, plaintiff appeals.

Affirmed.

John J. Walsh and John Keogh, for appellant. William T. Hincks, for appellee.

HALL, J. The plaintiff, an infant about three years of age, brings this action by her next friend. On the day alleged in the complaint, while living with her parents in a house belonging to her uncle, Patrick Fitzmaurice, she strayed upon the defendant's land, and either climbed upon or fell into a pile of hot soot, which one of the defendant's workmen had that day dumped in the defendant's yard, and was severely burned. Upon the following facts the trial court held that she was not entitled to a judgment for substantial damages: The back yard of the premises of said Patrick Fitzmaurice extended along the "west side of land purchased by the defendant, about five years before the time of accident, as a place upon which to dump ashes and soot from the furnace of its power house located upon land adjoining on the west, that of said Patrick Fitzmaurice. This land, in the rear of the defendant's premises, had been used by the defendant as such a dumping ground ever since its purchase in substantially the same manner as on the day of the accident. It was practically an open lot; the fences on the east and west sides of it having been down or in a dilapidated condition ever since the company bought it. It did not appear that there had been any division of the fence between the defendant's and Patrick Fitzmaurice's land for the purpose of repair. During most of the time while this yard had been so used, the accumulated ashes had formed a pile 15 to 20 feet wide, extending 30 or 40 feet from the rear of the power house, and sloping from a height of 3 or 4 feet down to the ground, at what remained of the divisional fence between the land of the defendant and that of said Patrick Fitzmaurice. While cinders and material from the dump sometimes slid down this slope upon the Fitzmaurice property, the ashes did not extend over upon it to any considerable extent at the time of the accident. The ash pile was distant from the street, and upon land not used by any one as a thoroughfare. Poor people of the neighborhood sometimes raked over the edges of the pile for coke, and were not driven away by the defendant. The place was not one likely to attract children, nor was there anything to cause the defendant to anticipate that a child of the plaintiff's age would stray unattended upon the premises and be injured. The plaintiff had never gone upon the defendant's lot before, nor had any one been burned by the ashes or soot upon said land. The soot by which the plaintiff was burned was dumped by the defendant's workman upon the side of defendant's lot most distant from the...