Hoyt v. City of Danbury

• Decision Date: 13 July 1897
• Citation: 69 Conn. 341,37 A. 1051
• Court: Connecticut Supreme Court
• Parties: HOYT v. CITY OF DANBURY.

37 A. 1051

69 Conn. 341

HOYT

v. CITY OF DANBURY.

Supreme Court of Errors of Connecticut.

July 13, 1897.

Appeal from superior court, Fairfield county; Frederick B. Hall, Judge.

Action by Henry W. Hoyt against the city of Danbury to recover damages for personal injuries claimed to have been caused by a defective highway. The court found the facts, and rendered judgment for plaintiff for $2,600, and defendant appeals. Reversed.

The finding of facts was as follows: "On November 9, 1894, at 8:30 a. m., the plaintiff, while walking easterly on the sidewalk on the south side of West street, in the city of Danbury, at a point on said sidewalk at the divisional line between the property of the town and city of Danbury, upon which the city hall building stands, and the property of Frank E. Hartwell, by reason of the defective and dangerous condition of the sidewalk at said point, as hereinafter stated, fell upon the sidewalk, and upon and down certain wooden steps at said place, and sustained a serious injury to his back and spine. The defective and dangerous condition of said highway and sidewalk consisted in and arose from the fact that soon after the completion of the city hall building, in 1886, which was erected at the joint expense of the town and borough of Danbury, the sidewalk north of the city hall building, which, with the sidewalk in front of the Hartwell property, descended by a gradual slope to Main street, which is immediately east of said city hall property, was cut down, and a stone wall running north and south was erected along the divisional line between said city hall property and said Hartwell property, and across the sidewalk on the south side of West street, so as to leave along the entire width of said sidewalk a perpendicular descent, to one going easterly on said sidewalk, of between three and four feet, and rendering it necessary, while said wall and descent remained, to use steps to pass from one of said grades to the other. After the completion of said city hall building said sidewalk was so cut down, and said wall erected, and movable wooden steps, with a wooden railing on each side of said steps, constructed, all upon the property of said town and borough, without the authority or action of said borough under the superintendence of the warden of said borough and of the selectmen of said town. The railings upon said steps coincided with the lines of the traveled walk of the sidewalk west of said steps, and were about six feet apart, and extended over the coping stone of said wall, which said coping stone was about one foot in width, and formed the upper step above said wooden steps. Said work of cutting down said sidewalk and building said wall and steps was paid for by said town and borough. There was no reasonable occasion for thus cutting down said sidewalk, and leaving said declivity to be passed over by steps, nor has there been any reasonable necesssity for the continuance of said dangerous condition. I do not find that it was intended that said declivity and steps should permanently remain upon said sidewalk. Said declivity with said steps upon said sidewalk have at all times since the same were constructed been dangerous, and have rendered said sidewalk unsafe for public travel, and have been a nuisance to the public having occasion to travel upon said sidewalk, and the defendant has at all times been negligent in thus suffering the same to remain upon said highway. Said steps were not in themselves defective, either in material or manner of construction, nor were they out of repair at the time of the plaintiff's injury. Said city hall building and said wall and steps were upon premises which at the time of the plaintiff's injury were jointly owned in fee by the defendant and said town of Danbury. At the time of the plaintiff's injury it was the duty of the defendant to keep the highway in question in a reasonably safe condition for public travel. At the time of said accident the plaintiff was familiar with the said sidewalk, and knew of the existence of said declivity and steps, and frequently passed over the same. The plaintiff has but one arm, and upon the morning in question carried under his arm a package containing a pair of child's shoes. At the time of the accident the said sidewalk and steps were covered with snow which had fallen during the previous night to a depth of three or four inches. I do not find the said sidewalk or steps were rendered dangerous for travel by reason, of said snow, nor was the defendant negligent in not having caused the removal of said snow. At the time of the accident the plaintiff, in approaching said steps to descend the same, was walking a little to the right of the middle of the walk, and was in the exercise of due care. He had stepped one foot upon the said coping stone of said wall, and had raised the other, and was in the act of stepping down upon the wooden steps when his foot upon the coping stone slipped, probably because of snow upon said stone, and he was unable in any manner to save himself from falling. He did not take hold of the railing of said steps, nor did he attempt to do so, as he approached said steps. I find that the plaintiff was without contributory negligence. I do not find that the plaintiff's fall was caused by the presence of snow upon said sidewalk or steps. I do not find that the plaintiff would have fallen had said declivity not existed. The plaintiff gave due notice to the defendant of said injury, but did not give the notice required by statute for injuries caused by snow or ice. The said city hall building was planned to be used in part, and at all times since its erection has been used in part, for other than municipal purposes, and from such other uses the owners thereof have derived an income."

Upon the trial of said cause, and during the cross-examination of one of the defendant's witnesses, counsel for the defendant made a general objection to all evidence in proof of any claimed defect in said highway by reason of the cutting down of said sidewalk and the use of steps at the place aforesaid, upon the ground that the question whether said sidewalk should be so cut down and such steps used were questions to be determined by the municipal authorities, and not by the court. It was agreed that all evidence of said character should be received subject to said objection.

Upon the foregoing facts, counsel for the defendant claimed, as matters of law, that plaintiff was guilty of contributory negligence; that the accident in question was occasioned by snow on said sidewalk and steps; that by the pleadings the only defect alleged was in the steps aforesaid, and that in the absence of any defect in the construction of said steps, or in their condition at the time of the accident, the plaintiff could recover no more than nominal damages; that the act of changing the grade of said sidewalk and of cutting down the same as aforesaid, and using steps, was the act of said borough of Danbury, and that, said borough authorities having decided to so change said grade and use said steps, the defendant was not liable in this action, beyond nominal damages, in the absence of any defect in the construction of said steps, or in their condition at the time of the accident; that upon all the facts aforesaid the plaintiff was only entitled to recover nominal damages.

The complaint was in two counts. The first alleged that the defendant was charged with the duty of keeping all the streets within its limits in repair, and that the highway in question was defective, in this: that the sidewalk in front of the city hall property at the point where the steps then led, and now lead, from the sidewalk in front of the premises of Frank E. Hartwell, adjoining said city hall property on the west, to the sidewalk in front of said city hall property, was about four feet perpendicularly below the said sidewalk in front of the said premises of said Frank E. Hartwell, by reason of the former having been cut down from a gradually inclined and safe grade to the condition just above described, rendering said sidewalk dangerous and defective,— the only means of passing from the said higher to the said lower sidewalk being dangerous and defective wooden steps,— which said condition of said highway at said point was well known to the defendant, and had existed, and had been by said city permitted to exist, for an unreasonable length of time. The second count alleged that the defendant owned the city hall property in fee simple, and had, with gross negligence, willfully and unlawfully, permitted to remain and maintained on and in the sidewalk in the highway in front of, and on the north side of, said city hall building, and on said premises of the defendant, and in and on that portion of said sidewalk immediately adjoining and in continuation of the sidewalk in front of said premises of said Frank E. Hartwell, an unsafe and exceedingly dangerous place, obstruction, and pitfall, to wit, a perpendicular stone wall about four feet in height, directly in the line of said sidewalk and across the whole width thereof, and arising from the said sidewalk in front of said city hall building to the said sidewalk in front of the said premises of said Frank E. Hartwell, next adjoining, constituting in and on said premises at said point a dangerous obstruction, pitfall, and nuisance, with only steep, dangerous, and defective wooden steps, built and maintained by the defendant, connecting the aforesaid higher and lower portions of said sidewalk.

The appellant assigned sundry errors of law, among which were that the court erred in holding that the plaintiff slipped "probably because of snow upon said stone," and at the same time refusing...