Gipstein v. Kirshenbaum

• Decision Date: 27 July 1934
• Citation: 118 Conn. 681,174 A. 261
• Court: Connecticut Supreme Court
• Parties: GIPSTEIN v. KIRSHENBAUM.

174 A. 261

118 Conn. 681

GIPSTEIN v. KIRSHENBAUM.

Supreme Court of Errors of Connecticut.

July 27, 1934

Appeal from Superior Court, Hartford County; John A. Cornell, Judge.

Action by Sarah Gipstein against Eva Kirshenbaum to recover damages for personal injuries alleged to have been caused by defendant's maintaining a nuisance, and by her negligence, brought to the superior court in Hartford county and tried to the jury. Verdict for the defendant, and appeal by the plaintiff.

Error and new trial ordered.

Jacob Schwolsky, of Hartford, for appellant.

Charles J. McLaughlin, of Hartford, for appellee.

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

HINMAN, Judge.

According to the finding, after such requested corrections as we are able to make, the facts of which the plaintiff offered evidence and claimed to have proved include the following which are material to a discussion of the assignments of error: On December 21, 1932, the defendant owned a two-family house, purchased in February, 1932, and occupied the first floor; the plaintiff for about two months had been a tenant of the second floor, and each used two rooms on the third floor. A rear stairway from the first to the second and third floors was under the control and supervision of the defendant and was used in common by both plaintiff and defendant. The plaintiff generally used the front stairway, but once a day or so used the rear. When the defendant purchased the premises there were on the stairway rubber mats, one on each of the first three treads from the bottom and one each on the first three treads from the top. These mats were corrugated on top and smooth on the bottom, their width was approximately the same as that of the treads of the stairs, they were somewhat shorter than the width of the stairway, and they were not fastened to the treads. The condition of the stairway and mats had not changed up to the time of the accident. Owing to the facts that the mats were smooth on the bottom, the treads of the stairs smooth, and the mats shorter than the width of the stairway and not fastened, it was likely they would slip forward and overlap the treads. The plaintiff started to descend the rear stairway, and as she stepped on the first step below the landing she felt that the mat had been moved forward and was overlapping the tread so that it gave her no support, and she fell down the stairway and was injured.

The complaint alleged that the mats " were allowed to be loose and overlap the top or tread of each step in such manner as to deceive one as to the width of the top or tread," and the trial court correctly construed further allegations as setting up three bases of recovery: First, that the overlapping of the mats created an inherently dangerous condition which was a nuisance; second, that through a natural tendency to create danger and inflict injury the condition was a nuisance which the defendant was negligent in permitting to remain and exist; third, that the defendant was negligent in failing to perform her duty to exercise reasonable care to maintain the stairway in a reasonably safe condition. The court charged that the evidence did not support the first of these, and this is assigned as error. If the evidence had established or tended to prove that the overlapping was created by the defendant and was a continuing condition, this criticism might have been well taken. However, the finding reveals that the most that the plaintiff could claim to have proved from the evidence offered was that the mats were likely to slip forward when stepped upon and, in consequence of such slipping, overlap the tread, and that, at the time of the accident, one of them had so moved and overlapped, but there was no evidence as to how long it had been in that situation. There was not disclosed a condition so permanent or continuing and so inherently or intrinsically dangerous and a menace to the safety of users as to constitute what has been characterized as an " absolute" nuisance. Hoffman v. Bristol. 113 Conn. 386, 392, 155 A. 499, 75 A.L.R. 1191; Hill v. Way, 117 Conn. 359, 363, 168 A. 1. " A mere tendency to injury is not sufficient, there must be something actually appreciable which of itself arrests the attention, that rests not merely in theory but strikes the common sense of the ordinary citizen." Joyce, Nuisance, p. 30. It must be such as to obviously expose another to probable injury. Welz v. Manzillo, 113 Conn. 674, 683. 155 A. 841; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 527, 28 A. 32. Upon the state of proof reflected by the finding, withdrawal of this element from the consideration of the jury was justified. The situation is quite distinguishable from that in Majestic Theater Co. v. Lutz, 210 Ky. 92, 100, 275 S.W. 16, in which it was open to the jury to find that the steps there in question were permanently so smooth and slippery as to be obviously dangerous to one using them in the ordinary way and exercising reasonable care.

The portion of the charge relating to the second claimed basis of recovery-nuisance grounded on negligence-was sufficient to make clear to the jury that the defendant would be liable for either the creation or the continuance, through her lack of reasonable care, of...