Jennes v. City of Norwich

• Decision Date: 12 December 1927
• Citation: 140 A. 119,107 Conn. 79
• Court: Connecticut Supreme Court
• Parties: JENNES v. CITY OF NORWICH.

140 A. 119

107 Conn. 79

JENNES v. CITY OF NORWICH.

Supreme Court of Errors of Connecticut.

December 12, 1927

Appeal from Superior Court, New London County; Newell Jennings Judge.

Action by Elizabeth Jennes against the city of Norwich to recover damages for personal injuries alleged to have been caused by a defective sidewalk tried to the court. Judgment for plaintiff, and defendant appeals. No error.

Maltbie J., dissenting.

William H. Shields, Jr., and Charles V. James, both of Norwich, for appellant.

John H. Barnes and Edwin W. Higgins, both of Norwich, for appellee.

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

BANKS J.

The trial court found that between 7 and 8 o'clock on the morning of December 24, 1924, the plaintiff slipped and fell upon the sidewalk of Summit street in the city of Norwich and received the injuries of which she complains; that the sidewalk at the spot where plaintiff fell was not reasonably safe for public travel, and had been in that condition since December 19, 1924, due to structural defects in combination with snow and ice formed thereon; that defendant had constructive notice of this condition a sufficiently long time prior to the accident to have remedied the defect, but had failed to do so; and that plaintiff was in the exercise of due care at the time that she fell. The court further found that on the day on which plaintiff fell it began to rain about 6 o'clock in the morning; the rain freezing as it fell, and covering the streets and sidewalks of the city with a solid sheet of glare ice, making them very slippery.

The appellant filed numerous requests to correct the finding by striking out certain paragraphs thereof and substituting therefor paragraphs of the draft finding. The reasons for the corrections requested are in nearly every case stated to be that the paragraphs of the finding sought to be eliminated " were not proved by the evidence on the trial," and that the paragraphs sought to be substituted " were proved by the evidence on the trial." It would seem that it ought not to be necessary to reiterate what we have said so frequently that only when a fact is found without evidence will it be stricken from a finding, and only when a fact is undisputed or admitted will it be added to a finding. Practice Book 1922, p. 309. This court will not retry questions of fact which have been decided by the trial court. The material facts which the appellant seeks to have corrected were found upon conflicting evidence, and will not be corrected. The finding as corrected by the trial court fairly presents the only question of law upon the record, which is whether the storm of the morning of the accident and its results was the proximate cause of the plaintiff's fall. The slippery and dangerous condition of the streets and sidewalks of Norwich resulting from that storm had not existed for a long enough period prior to plaintiff's fall to give the city notice of the condition and a reasonable opportunity to remedy it. Wladyka v. Waterbury, 98 Conn. 305, 119 A. 149; Burgess v. Plainville, 101 Conn. 68, 124 A. 829; Frechette v. New Haven, 104 Conn. 83, 132 A. 467. If, therefore, plaintiff's fall was proximately due to the results produced by that storm, the defendant cannot be held liable.

The trial court found that the sidewalk, at the point where plaintiff fell, was broken, patched, uneven, ridged, and of varying grades; that it was in an extremely slippery and dangerous condition, and not reasonably safe for public travel from the 19th to the 24th of December; and that this condition, of which the defendant had notice, was due to the structural defects in the walk in combination with the ice and snow formed thereon. Then came the storm of December 24th, which covered the streets and sidewalks of the city with a solid sheet of glare ice. The plaintiff slipped upon the newly formed ice which covered the surface of the walk where it was broken and uneven, and which had been in an unsafe condition for five days, because of the old snow and ice which had accumulated upon it. The finding presents the case of a defect in the highway concurring with a natural cause to produce an injury. For the latter, the city is not responsible, and can be held liable only if the former was the direct and proximate cause of plaintiff's injuries. If an injury results from a defect, combined with the culpable negligence of a third party, it cannot be said to have been caused by the defect, and cannot be made the subject of recovery under the statute (Gen. St. 1918, § 1414). Bartram v. Sharon, 71 Conn. 686, 43 A. 143 46 L.R.A. 144, 71 Am.St.Rep. 225; Gustafson v Meriden, 103 Conn. 598, 131 A. 437. If, however, an accident--in the sense of an occurrence for which no one is responsible--concurs with a defect to produce an injury, the defect may still be the efficient and proximate cause of the injury, and the municipality be liable. Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238, 16 Am.Rep. 33; Upton, Adm'r, v. Windham, 75 Conn. 288, 53 A. 660, 96 Am.St.Rep. 197. In the latter case plaintiff's horse became frightened at a passing automobile, and plunged over an unprotected bank, which constituted a defect...