Hoffman v. Mohican Co.

• Decision Date: 14 February 1950
• Citation: 136 Conn. 392,71 A.2d 921
• Court: Connecticut Supreme Court
• Parties: HOFFMAN v. MOHICAN CO. Supreme Court of Errors of Connecticut

Page 921

71 A.2d 921

136 Conn. 392

HOFFMAN v. MOHICAN CO.

Supreme Court of Errors of Connecticut.

Feb. 14, 1950.

Morton E. Cole, Hartford, with whom, on the brief, were Cyril Cole and Milton Krevolin, Hartford, for the appellant.

Robert L. Halloran, Hartford, with whom was Harold G. Johnson, Hartford, for the appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, and DICKENSON, JJ., and INGLIS, Superior Court Judge.

BROWN, Judge.

This is an action for personal injuries alleged to have been sustained by the plaintiff, a customer in the defendant's market, when her foot slipped upon a piece of vegetable matter and she fell to the floor. The first count of the complaint alleges negligence and the second nuisance. The jury rendered a verdict for the defendant and the plaintiff has appealed from the judgment thereon, claiming error in the court's charge and rulings upon evidence.

The defendant conducted a large retail market in a store on Main Street in Hartford, where fruits and vegetables were sold from a rectangular counter located in a main aisle. The floor was of hardwood. The products, after they had been brought from the rear of the store, were displayed on the counter, around the edge of which ran a chromium and glass sidewall eleven inches high. On September 4, 1945, the plaintiff was a business invitee in the store. As she was walking by the counter her foot slipped on a piece of vegetable matter, causing her to fall. These facts are undisputed. The parties were at issue as to whether the plaintiff's fall and claimed consequent injuries were due to a breach of duty upon the part of the defendant.

Of the errors assigned in the charge, two only call for consideration. Practice Book § 156. The first relates to the court's instruction that on the case as presented the jury would be unwarranted in finding the defendant liable on the ground of nuisance. This instruction was correct, for neither a public nor a private nuisance was involved. Webel v. Yale University, 125 Conn. 515, 524, 7 A.2d 215, 123 A.L.R. 863; Clark v. Pierce & Norton Co., 131 Conn. 499, 502, 40 A.2d 752. The second concerns the failure of the court to charge that it was not necessary for the plaintiff to prove all of her allegations as to the defendants' negligence in order to recover, and that proof of one material allegation would suffice.

It is alleged in the first count that the plaintiff's fall was due to the defendant's negligence in that it: '(a) * * * caused or allowed and permitted the floor * * * to be and become wet and strewn with pieces of vegetables and/or fruit; (b) * * * maintained said floor in said condition; (c) * * * failed to * * * remedy said condition; (d) * * * failed to make reasonable inspections of said floor; (e) * * * failed to warn the Plaintiff of said conditions existing on said floor.' The court's change made clear that the plaintiff was not entitled to recover unless she proved that 'the defendant was negligent as alleged.' Where several acts of negligence cause but one injury, the plaintiff may allege all the acts of negligence in one count and aver that they were the cause, and any one of them proved upon the trial will sustain the complaint. Ashborn v. Town of Waterbury, 70 Conn. 551, 555, 40 A. 458; Pratt, Read & Co. v. New York, N. H. & H. R. Co., 102 Conn. 735, 740, 130 A. 102. The case of Sacks v. Connecticut Co., 109 Conn. 221, 237, 146 A. 494, 500, where 'at least eight acts of negligence which were alleged in the complaint,' affords a good illustration of the application of this principle. An analysis of the five allegations of the first count quoted above, however, discloses that the principle does not apply in this case. While each of them recites a factor relevant for consideration in determining whether the defendant was negligent with relation to the eventual static condition which caused the plaintiff's fall, no one of them per se constitutes an allegation of actionable negligence. Considered together they serve to allege the several integral parts which in the aggregate constitute the defendant's negligence complained of. In essence, the defendant is charged in this complaint with only one particular of negligence, i.e., a failure to use reasonable care to keep the premises reasonably safe. The distinction between allegations of the nature made here and those descriptive, for example, of the separate grounds upon which conduct of a driver of a motor vehicle may be claimed to have been negligent is manifest. For example, excessive speed, failure to signal and failure to grant the right of way might each or all constitute the proximate cause of an injury. As appears from the instructions of the court, it fully explained the significance of the factors which the plaintiff alleged. It could not properly have charged that proof of any one of them of itself would constitute actionable negligence. The court did not err in its charge to the jury.

The plaintiff called as a...