Hackenson v. City of Waterbury

• Decision Date: 01 November 1938
• Citation: 124 Conn. 679,2 A.2d 215
• Court: Connecticut Supreme Court
• Parties: HACKENSON v. CITY OF WATERBURY.

2 A.2d 215

124 Conn. 679

HACKENSON v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

November 1, 1938

Appeal from Court of Common Pleas for the Judicial District of Waterbury, New Haven County; Edward J. Finn, Judge.

Action by Doris Hackenson against the City of Waterbury to recover damages for personal injuries alleged to have been caused by a defective street. Verdict for plaintiff, which the court on defendant's motion set aside, and from such decision plaintiff appeals.

No error.

William K. Lawlor, of Waterbury, for appellant.

Timothy S. Sullivan and Edward J. McDonald, both of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN and JENNINGS JJ.

BROWN Judge.

It is undisputed that upon the evidence the jury could properly have found that the plaintiff, while walking southerly across North Main Street in Waterbury from the northwesterly corner of its intersection with Bishop Street to the southerly side of North Main Street, in the exercise of due care, stepped into a hole or depression in the pavement located somewhere between the double trolley tracks near the center of the street, which caused her to fall, resulting in the injuries complained of. The question determinative of this appeal is whether the evidence warranted the finding of the further fact essential to a verdict against the defendant, that this hole or depression was not located within eight inches of a trolley rail, the defendant not being liable for a defect within this area by virtue of §§ 3752 and 3755 of the General Statutes.

By her amended complaint the plaintiff alleged that there ‘ existed * * * at said place a defective and dangerous condition, in that said crosswalk bulged and a deep depression exists just north of the trolley tracks on the north rail of the northbound traffic.’ This rail is the third one from the north side of the street and we refer to it herein as the third rail. The plaintiff further alleged that as she walked southerly she ‘ put her left too and the sole of her foot into said depression and was thrown.’ In support of these allegations, the plaintiff on direct examination stated that she fell between the second and third rails, and testified: ‘ I struck a bulge in the pavement, and I went up and then to the right-yes-struck the hole, and put my foot in the hole and it threw me to the pavement. * * * Well, the hole I stepped into was about two and a half or three inches deep-quite round-that is, in circumference-and right near it is the rail that was raised up a little bit’ (referring to the third rail). Her further testimony on cross-examination was:

‘ Q. You say you fell on a raised part of the pavement; is that it? A. No, I stepped into a hole.

‘ Q. In a hole? A. I certainly did.

‘ Q. And is that near the track? A. It certainly was.

‘ Q. Was it right on the track? A. No.

‘ Q. How close to the track was it? * * * A. Well, I should say two and one-half inches.

‘ Q. From the rail? A. Yes.

‘ Q. * * * Your foot went into that hole, two and one-half inches from the rail, and you fell? A. Yes.’

This testimony, aside from that offered through the plaintiff after the defendant had rested its case, which is hereinafter referred to, was the only direct evidence as to where the hole in question was located.

The plaintiff contends, however, that notwithstanding this testimony the jury could properly have inferred that the hole was more than eight inches north of the third rail, from the plaintiff's further testimony that she ‘ fell forward’ and that her right hip landed on the third rail. While her testimony is clear that she fell forward as distinguished from backward, since she stated her stomach and chest struck the pavement, it is not sufficiently unequivocal that she fell forward in the sense of at right angles to the third rail, to support a reasonable inference in direct conflict with her positive and reiterated testimony above quoted that the hole was within two and one-half inches of the rail. The plaintiff further contends that the testimony of her employer in pointing out a spot about midway between the third rail and the one next north of it as the place where she says she fell was sufficient to support a finding by the jury that the hole was located at that point and so more than eight inches from the third rail. This evidence is not only subject to the infirmity implicit in all hearsay testimony, but if interpreted as claimed by the plaintiff, was further categorically contradictory of her testimony under oath above recited, both as to the location of the hole with relation to the rail and also with relation to the easterly line of the crosswalk. In view of this, and of the further fact that all of the credible evidence in the case makes clear that at the point referred to by this witness the surface of the street was smooth and free from any defect of any nature, the jury could not reasonably have found that the hole in question was located at that point.

The plaintiff's final contention is predicated upon what she claims to be evidence in the record disclosed by the transcript of what occurred when she was recalled to the stand after the defendant had rested its case. In the absence of a finding, the plaintiff's claim can only be tested by what is revealed by this transcript, made a part of the record by order of this court in response to the plaintiff's motion. This shows that the plaintiff's counsel, after the...