Henowitz v. Rockville Sav. Bank

• Decision Date: 08 June 1934
• Court: Connecticut Supreme Court
• Parties: HENOWITZ v. ROCKVILLE SAV. BANK.

173 A. 221

118 Conn. 527

HENOWITZ v. ROCKVILLE SAV. BANK.

Supreme Court of Errors of Connecticut.

June 8, 1934

Appeal from City Court of Hartford; Edwin M. Ryan, Judge.

Action by Gussie Henowitz against the Rockville Savings Bank to recover damages for injuries caused by defective stairway on defendant's property. From a judgment for plaintiff defendant appeals.

No error.

William L. Hadden, Clarence A. Hadden, and Martin Gormley all of New Haven, for appellant.

David Haymond and Alfred F. Kotchen, both of Hartford, for appellee.

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

AVERY Judge.

The plaintiff brought her action to recover for injuries claimed to have been received by falling upon the stairway at the entrance to a tenement, in the city of Hartford, owned by the defendant. In her complaint, she claimed to have fallen upon the stairs leading from the city sidewalk into the premises, which she alleged were under the control of the defendant and a common means of access to the tenements in its building. After trial to the court, judgment was rendered for the plaintiff and on this appeal the errors claimed are the finding of the court that the plaintiff was in the exercise of due care and was free from contributory negligence, and two rulings upon evidence.

From the finding, these facts appear: The defendant owned the premises Nos. 493-495 Garden street, Hartford, consisting of a building housing six families in six separate apartments. The front entrance consisted of three concrete steps located in close proximity to the sidewalk on Garden street, a substantially level concrete walk, and five more concrete steps leading to the front door of the building. This was a common entrance to and exit from the building, and control of it was retained by the defendant. On October 24, 1932, the plaintiff visited a tenant living on the top floor of the building, and in leaving through the front door used the common exit. In descending the three steps nearest the street, while her left foot was on the top step, she had placed her right foot on the second step and the heel of her shoe became lodged in a crack in the concrete thereon, causing her to lose her balance and to fall. The crack was located on the tread of the step close to the riser and was large enough in length, width, and depth to admit the heel of her shoe. She rarely visited the premises in question and was not acquainted with the condition of the stairway. The trial court has also found that the location of the crack was such that a person leaving the building could not see the defect in the stairway; and while the defendant attacks this finding as having no basis in the evidence, we cannot strike it out because, while little oral testimony supporting it appears in the record, the transcript of evidence shows that several witnesses pointed out the location of the crack upon some steps in the courtroom; and as it does not appear where they indicated that location to be, we cannot say that the finding did not have support in this evidence. The crack had existed from the middle of September, 1932, to the time of the accident.

The trial court found that the plaintiff was in the exercise of due care and the defendant has made this the first ground of appeal. The plaintiff, in the absence of any notice of a defect in the steps, was entitled to assume that they were reasonably safe and was not obligated to exercise special care in descending them. Hurlburt v. Sherman, 116 Conn. 102, 106, 163 A. 603. Upon the facts detailed in the finding, the determination of this question was one of fact for the trial court. Wood v. Danbury, 72 Conn. 69, 43 A. 534.

In the course of the trial, the plaintiff offered as an exhibit a photograph of the stairway, but...