Lombardi v. Wallad

• Decision Date: 01 March 1923
• Court: Connecticut Supreme Court
• Parties: LOMBARDI v. WALLAD ET AL.

120 A. 291

98 Conn. 510

LOMBARDI v. WALLAD ET AL.

Supreme Court of Errors of Connecticut.

March 1, 1923

Appeal from Superior Court, Hartford County; William M. Maltbie Judge.

Action by Carmine Lombardi, administrator, against Abraham Wallad and others. From a judgment for defendants, plaintiff appeals. Judgment set aside, and new trial ordered.

The complaint alleged that the defendant Melicovsky employed the defendant Wallad to keep certain premises owned by Melicovsky clean and in order, and to burn the rubbish, which accumulated from time to time in the yard in the rear of two tenement houses, which stood on the premises, and which were occupied by tenants who had several young children; that these children were accustomed to play in this yard and to approach the burning rubbish that on August 16, 1921, the defendant Wallad, acting in Melicovsky's employment and under his instructions " negligently kindled a fire" of rubbish in this yard; that while it was burning and while the blaze was attractive to and dangerous to young children, Wallad left the fire unguarded and without taking any precaution to prevent such children from approaching it and getting burned; that while the plaintiff's intestate, with other children, was playing about this fire, her clothing caught fire and she was severely burned and died the following day; that her death " was due wholly" to the negligence of the defendants " in failing to guard the burning rubbish" and " in failing either to keep some one stationed near by while said rubbish was burning, * * * or to erect a sufficient barrier" to prevent young children from approaching dangerously near to the fire. It was alleged that the plaintiff's intestate was six years of age, and that her injuries and resulting death were not due to her fault or negligence. The defendants denied all of these allegations.

Jacob Berman and John J. Dwyer, both of Hartford, for appellant.

Milton Bacharach, of Hartford, for appellee Melicovsky.

BURPEE, J. (after stating the facts as above).

For the first reason of appeal, the appellant assigns a section of the charge in which the court instructed the jury that the plaintiff could recover only upon the allegations presented in the pleadings, and that those allegations set out, first, a want of care in the way in which the fire was kindled, and, second, a want of care in leaving the fire unguarded while it was burning, and without taking any precaution to prevent the plaintiff's intestate from approaching so near to it as to get burned; and the court then stated that there was no evidence in the case which would justify a recovery on the first basis and that the only question to be answered was whether the defendants were liable on the second ground. The " evidence in the case" was not made a part of the record. In the finding, which sets out the facts which each party offered evidence to prove and claimed to have proved, it appears that the defendant Wallad set fire to a pile of rubbish in an open space 70 feet long and 40 feet wide, which was frequently used by children for a playground, and did not remain " to guard it until it was no longer dangerous to children of tender years," and that a boy about eight years old ignited a stick from the burning embers, and touched it to the dress of the plaintiff's intestate, which caught fire and burned her so severely that she died the next day. None of the facts claimed to have been proved would indicate in what way the fire was kindled, or that it was " negligently kindled," as was asserted in the complaint, and no claim of such a nature was made during the trial. On the contrary, the plaintiff distinctly specifies that the death of his intestate " was due wholly to the negligence of the defendants either to keep some one near by or to erect a barrier to prevent children from approaching" the fire while it was burning; and in their brief the plaintiff's counsel declare that, if Wallad " had not left the fire, the child would not have been burned." Upon the record we discover no reason to hold that these instructions by the court were erroneous.

The finding made by the trial court discloses that in the evidence offered by the parties the following facts were not disputed: The yard mentioned was an open space in the rear of two houses containing 14 tenements, in which were the homes of more than 20 children, who used this yard as a common playground. With this yard and these circumstances the defendant Wallad was familiar. About once a month during several years he had been burning refuse in this yard. He knew that children were likely to approach any fire he kindled, and it had been his custom hitherto to stand by to guard each fire until it was harmless. On August 16, 1921, he set fire to a pile of rubbish in this yard, remained near it until only burning embers were left, and then went away to get water to extinguish the embers. He left no person, and he took no precaution to prevent children from approaching the spot. At this moment no child was in the yard, but after he had been gone a few minutes, several children came and gathered around the fire. Among them were the plaintiff's child, who was about six years old, and a boy about eight years old. This boy picked up a stick out of the fire, ignited it from the still burning embers, and touched it, blazing, to the clothing of the little girl, which took fire. In this manner she received the burns which caused her death. With these facts before them the court charged the jury that, no matter how great the failure of a person might be to exercise the care which he ought to have exercised, unless that failure was a proximate cause of the resulting injury, there could be no recovery in an action at law. Then, after giving a definition of the words " proximate cause," and stating that there may be two failures to exercise proper care, " each of which is followed by the injury in a natural sequence, each of which is such that the injury would not have occurred without it, and neither of which is separated from the injury by a new intervening, independent cause," the court proceeded to instruct the jury in this language:

" The significance of this explanation in this case lies here: There was some testimony from a little boy upon the witness stand that, had it not been for another little boy taking a stick out of the fire and holding it to the dress of this little girl, she would not have been burned. Now, if you find that to be the fact, if you find that she would not have been burned had this other little boy not taken this stick from the fire, then you have to ask with great care whether or not, in view of that fact, it can be said that any want of care which you may feel is chargeable against Wallad was a proximate cause of the injury which followed, whether any want of care on his part could be said to be followed in a natural sequence by the injury which resulted; and, in considering that, you have to consider the nature and disposition of children, their aptitude to do the sort of thing which this little boy is charged with doing, and considerations of a like nature. Then you have to ask, Would the injury have resulted, in view of the use of this stick by the boy, would it have resulted, had it not also been for the want of proper care on the part of Wallad? and then you have to ask whether the use of that stick by the little boy was really a new intervening and independent cause of the injury, so that any want of care on the part of Wallad no longer was an efficient producing cause, but was pushed back, as one might say, to be a mere condition, and the real cause be the use of the stick by the boy. And so, I say, gentlemen, if you find that this injury came about through the use of this stick by the little boy, even though you find want of proper care on the part of Wallad, you have carefully to ask whether that want of care was one proximate cause of the injury, was something without the existence of which the injury would not have occurred, was something which was followed in a natural sequence by the injury, and was something which was not separated from the injury by any new intervening and independent cause."

The appellant assigns this part of the...