Krooner v. City of Waterbury

• Decision Date: 28 January 1927
• Citation: 105 Conn. 476,136 A. 93
• Court: Connecticut Supreme Court
• Parties: KROONER v. CITY OF WATERBURY ET AL.

136 A. 93

105 Conn. 476

KROONER v. CITY OF WATERBURY ET AL.

Supreme Court of Errors of Connecticut.

January 28, 1927

Appeal from Superior Court, New Haven County; Alfred C. Baldwin Judge.

Action by George W. Krooner to recover damages for personal injuries, alleged to have been caused by a defective sidewalk, against the City of Waterbury and others. Judgment for defendants, and plaintiff appeals. Error, and new trial ordered.

Frederick M. Peasley and Clayton L. Klein, both of Waterbury for appellant.

Charles O'Connor and Edward J. McDonald, both of Waterbury, for appellee City of Waterbury.

MALTBIE, J.

This is an appeal by the plaintiff from a judgment in favor of the defendant in an action wherein the plaintiff sought to recover damages for an injury suffered by a fall upon a sidewalk in the defendant city. The complaint alleges that the sidewalk was defective and unsafe for public travel " by reason of the covers of the water and gas mains which are set in" it, and, in a separate paragraph, that it was " also defective and unsafe for public travel for and by reason of an accumulation of ice and snow" upon it. On the trial and before us the complaint has been treated as stating two causes of action, one because the sidewalk was itself defective and the other arising under a provision of the defendant's charter making it liable for injuries suffered " " where there is some structural defect in such walk which is rendered more dangerous by reason of ice and snow thereon." The second cause of action can hardly be said to be well pleaded, but we see no reason why we may not treat the action upon the same basis as did the trial court and counsel. New Haven Water Co. v. Russell, 86 Conn. 361, 365, 85 A. 636.

The plaintiff complains of the failure of the trial court to instruct the jury, as requested, that if they found that the plaintiff had proven either of the two claimed causes of action he would be entitled to a verdict. This request, of course, stated a correct proposition of law, but we search the charge in vain for any instruction to this effect. The trial court does, indeed, state that the plaintiff sets up two causes of action; it discusses at length that growing out of the claimed defect in the sidewalk itself, and does make some reference to the other. But instead of specifically charging the jury that, if they found proven the condition necessary to establish either, the plaintiff would be entitled to a verdict, we find that, near the beginning of the charge, the trial court, after rehearsing the allegations of the complaint pertaining to both causes of action, instructed the jury that it was the duty of the plaintiff to prove " these material allegations" ; and near the end of the portion of the charge dealing with liability, in stating the contentions of the plaintiff, it included the facts relevant to both the claimed defect in the sidewalk itself and the claim that this defect was made more dangerous by reason of an accumulation of ice and snow thereon, and instructed the jury that if they found these contentions to be sound, and also that the city was chargeable with notice and that it had failed to discharge its duty in its care of the walk, then the plaintiff was entitled to a verdict. The trial court was in error in not charging the jury that, if they found proven the facts necessary to establish either of the claimed causes of action, the plaintiff would be entitled to recover.

This conclusion requires a retrial, and makes desirable a consideration of certain other claimed errors in the charge. The most important of these involves the proper meaning of that section of the defendant's charter which provides:

" Whenever any person shall cause any defect in, or place, or cause to be placed, any obstruction on any of the streets of said city, such person shall be held to answer to any claim for damages which may be made against said city therefor; * * * said city shall in no case be liable for any injury occasioned by ice or snow upon the sidewalks of said city, except in cases where there is some structural defect in such walk which is rendered more dangerous by reason of ice or snow thereupon." 12 Special Laws, p. 443, § 25.

The ancient statute which in certain cases permits an injured party to recover damages for injuries suffered upon highways begins:

" Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair." General Statutes, § 1414.

Repeated decisions have established, as the necessary condition which alone will permit a recovery upon the ground that a road or bridge is defective, that it is not reasonably safe ...