Jacen v. Town Of East Hartford.

• Decision Date: 08 November 1946
• Citation: 133 Conn. 243,50 A.2d 61
• Parties: JACEN v. TOWN OF EAST HARTFORD.
• Court: Connecticut Supreme Court

133 Conn. 243

50 A.2d 61

JACEN

v.TOWN OF EAST HARTFORD.

Supreme Court of Errors of Connecticut.

Nov. 8, 1946.

Appeal from Superior Court, Hartford County; Quinlan, Judge.

Action by Mary E. Jacen, administrix of the estate of John McBride, deceased, against the Town of East Hartford, to recover damages for personal injuries and death, alleged to have been caused by an icy sidewalk, brought to the Superior Court and tried to the court. Judgment for the defendant, and appeal by the plaintiff.

No error.

William H. Fogerty, of Hartford, for appellant.

Warren Maxwell, of Hartford, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

DICKENSON, Judge.

The action was brought by the plaintiff to recover damages for injuries and she ensuing death of her intestate as a result of a fall upon a sidewalk under the control of the defendant. A first count charged the defendant with a breach of its statutory duty to keep its walk in proper repair, a second count with maintaining a nuisance. The plaintiff has appealed from a judgment for the defendant on both counts.

There was no allegation that a nuisance was created by the defendant. The claim was that it resulted because the defendant permitted water to flow from adjoining land upon the walk where it froze and caused a dangerous condition. The cause of the formation of the ice is so found by the trial court and this finding is not attacked by the plaintiff. From this it appears that the condition was not created by the ‘positive’ act of the defendant and hence, if a nuisance, if was one for which the defendant was not liable. Karnasiewicz v. City of New Britain, 131 Conn. 691, 694, 42 A.2d 32; Bacon v. Town of Rocky Hill, 126 Conn. 402, 407, 11 A.2d 399.

Reference to the memorandum of decision (see Duggan v. Byrolly Transportation Co., 121 Conn. 372, 375, 185 A. 85) shows that the trial court based its judgment on the first count upon lack of evidence of due care, and as that issue is decisive of the action we confine our discussion to it. The undisputed facts sufficient for a consideration of this issue are that on December 27, 1944, at 5:30 p. m. the plaintiff's intestate fell upon a public sidewalk under the control of the defendant which was covered with a coating of ice approximately an inch thick, caused by the melting of snow on adjoining property and the flow of water therefrom freezing upon the sidewalk. The decedent, who was seventy-three years old at the time and had suffered for some years from nephritis and uremic poisoning, of which vertigo and momentary loss of consciousness are common symptoms, fractured his hip as the result of his fall. He died about ten days later of uremic poisoning. The trial court further found that ‘No credible evidence was offered as to the decedent's conduct prior to said fall, either as to his manner of approach to the location of it-whether walking, hurrying or running, or as to what, if any, attention he was paying to his footing or to possible hazards from the ice hereinabove described, and of whose presence at the point he was at the time fully aware.’ The plaintiff assigns error in the final statement of this finding but she does not pursue it in her brief by specific reference to any evidence contradicting it. As the defendant points out, the...