Lewis v. I. M. Shapiro Co. Inc.

• Decision Date: 12 July 1945
• Citation: 44 A.2d 124,132 Conn. 342
• Court: Connecticut Supreme Court
• Parties: LEWIS v. I. M. SHAPIRO CO., Inc., et al.

132 Conn. 342

44 A.2d 124

LEWIS

v.I. M. SHAPIRO CO., Inc., et al.

Supreme Court of Errors of Connecticut.

July 12, 1945.

Appeal from Court of Common Pleas, District of Waterbury; Wall, Judge.

Action by James Lewis against I. M. Shapiro Company, Inc., and others, to recover damages for personal injuries, alleged to have been caused by the negligence of defendants, brought to the court of common pleas in the judicial district of Waterbury and tried to the court. Judgment for plaintiff against named defendant only, and named defendant appeals. Named defendant's motion for reargument after decision on appeal was denied.

No error.

Michael V. Blansfield and Harry M. Albert, both of Waterbury, for appellant (named defendant).

Walter E. Monagan and A. Henry Weisman, both of Waterbury, for appellee (plaintiff).

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

BROWN, Judge.

In this action for damages for personal injuries sustained by the young plaintiff when a brick wall fell upon him by reason of the alleged negligence of the named defendant, hereinafter called the defendant, he had judgment and the defendant has appealed. The material facts found by the court, with the corrections to which the defendant is entitled, may be thus summarized: Brookside Dairies, Inc., operated a plant on its land in Waterbury which fronted westerly on South Leonard Street and at the rear abutted land of the New York, New Haven and Hartford Railroad Company. Opposite the rear of the dairy company's property on the east side of the railroad land was the house where the plaintiff lived, fronting on Lafayette Street. There was a brick wall six feet high and about eight inches thick on the dairy company's land along the entire fifty feet of its east boundary line. Adjoining the east face of this wall, for its whole length and fifteen feet beyond to the north, was a freight loading platform six feet wide and three and one-half feet high. This was located on the railroad's land and was served by the most westerly of the three sidetracks in its right of way at that point. The understructure of the platform consisted of heavy cross-braced timbers and its floor was made of sheets of steel fastened to the woodwork by lag screws. The brick wall had become dilapidated and was leaning to the east so that its top was six inches over the west line of the railroad land. The resulting pressure of the wall forced the platform so close to the track that the railroad requested the dairy company, which had the right to use the platform, to remedy the condition. Accordingly, the dairy company contracted with the defendant for the removal of the platform with its supports and for the erection of a new wall in place of the old in accord with plans and specifications prepared by the dairy company's engineer. The only provision of the contract relative to the platform and old wall was that they should be removed by the defendant, no manner or method being mentioned.

The defendant commenced work under the contract on April 4, 1940, and did no further work until the morning of April 8, 1940. At that time, it had removed some brick from the top of the wall, part of the steel platform and some of the supporting posts and stringers. These were left nearby on the railroad land. About 8:30 in the morning, on April 8, the plaintiff, who was eleven years of age, started from his home on Lafayette Street to go to school by following the course which adults and children alike were accustomed to use. This led west across the railroad tracks, and thence over the property next south of the dairy company's land, at a point within a very few feet of the southerly end of the platform, to South Leonard Street. Several other persons also crossed both on April 4 and April 8. Seeing the defendant's men at work taking down the platform near its northerly end, the plaintiff went over to watch them. He saw another boy pick up some wood and, upon request made to one of the defendant's workmen, was told that he might have some. He thereupon picked up one or two pieces from the ground, carried the wood across the tracks and threw it down, the embankment from the railroad right of way into the backyard of his home. He then resumed his way to school.

Because of rain the defendant's workmen quit work at 10 o'clock that morning and left the premises. Before doing so, they had dug excavations at intervals of six feet along the west face of the wall to remove the concrete foundations of the posts of a fence which had stood close to it. By their removal of a portion of the platform, as recited above, the defendant took away the only extraneous support there was to keep the wall from toppling over. Notwithstanding this, its employees departed without taking any measure by shoring or otherwise to guard against the contingency. At about 11:30 a.m., the plaintiff, who was on his way home from school by the same path, observed people removing wood from the railroad tracks in the vicinity of the wall where the men had been at work. Joining them, he stooped to pick up a piece from the tracks and had his back to the wall when it fell upon him, causing the serious injuries complained of.

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