Marra v. Kaufman

• Court: Connecticut Supreme Court
• Writing for the Court: MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.
• Citation: Marra v. Kaufman, 134 Conn. 522, 58 A.2d 736 (Conn. 1948)
• Decision Date: 14 April 1948
• Parties: MARRA v. KAUFMAN et al.

134 Conn. 522

58 A.2d 736

MARRA

v.KAUFMAN et al.

Supreme Court of Errors of Connecticut.

April 14, 1948.

Appeal from Superior Court, New Haven County; Quinlan, Judge.

Action by Joseph Marra against Mable G. Kaufman and another for injuries alleged to have been sustained by plaintiff as a result of a fall on defendant's driveway alleged to have been caused by negligence of defendant. Verdict and judgment for defendant, and plaintiff appeals.

No error.

Alfonse C. Fasano, of New Haven, for appellant.

David M. Reilly, of New Haven, for appellees.

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

BROWN, Judge.

The plaintiff brought this action for damages for personal injuries alleged to have been sustained by a fall on the defendants' driveway by reason of its dangerous condition because of snow and ice thereon due to the defendants' negligence. The jury's verdict was for the defendants, and the plaintiff has appealed from the judgment entered on the verdict. The only questions presented to this court for determination relate to claimed errors in the court's charge to the jury.

These facts are undisputed: On February 12, 1945, the defendants were and for a long time had been the owners of property at 30 Sylvan Avenue, New Haven. There was a two-family house in front in which the defendants lived and a business building in the rear leased to a drycleaning concern, where the defendant Mable was a part-time employee. A concrete driveway 110 feet long and 7 feet wide extended from the street along the side of the house to the building at the rear. This served as a passway for the cleaning establishment, and the defendants had possession and control of it. On February 5, 1945, there was a fire which extensively damaged the rear building and the cleaning establishment. On February 12, 1945, the plaintiff sustained injuries by a fall, either on the driveway or on the sidewalk nearby.

The plaintiff has assigned error in ten paragraphs of the charge as given and also in the court's refusal to grant his eleven requests to charge. His brief contains an extended argument in support of the former assignment. A careful analysis of the record, however, shows that, as defined by the plaintiff's exceptions to the charge, but three of the errors claimed call for consideration. Practice Book, § 156; Soderstrom v. Country Homes of Norwalk, Inc., 132 Conn. 381, 386, 44 A.2d 698; Anderson v. Burgess Express Co., 132 Conn. 545, 546, 45 A.2d 825. The conflicting claims of proof, in so far as material to them, may be summarized as below.

The plaintiff claimed to have proved: For several years prior to his fall, he had from time to time delivered clothes to the cleaners on the defendants' premises; after the fire on February 5, 1945, the defendant Mable was at the cleaning establishment and continued to receive clothes from customers for cleaning; on February 12, 1945, the plaintiff had left a suit there to be cleaned and as he was returning along the driveway to the street he slipped and fell on hard-packed snow and ice which covered the driveway and upon which there was no abrasive material and broke his left ankle; the plaintiff identified the place of the fall as being twenty-six feet from the sidewalk, while one of his witnesses stated that it was about six feet from the sidewalk; both places were covered with hard-packed snow and ice and were without sand or ashes; the entire driveway was so covered in consequence of the defendants' failure to remove snow and ice; and their negligence in permitting it to accumulate there was the proximate cause of the plaintiff's injuries. The defendant claimed to have proved: The fire of February 5, 1945, completely gutted the building and burned out the cleaning establishment; this condition persisted on February 12, 1945; it was easily observable from the street; there was no one on duty at the establishment and the plaintiff delivered no clothes there for cleaning on February 12; the plaintiff failed to establish on what part of the driveway, so far as the width was concerned, he claimed to have fallen; the plaintiff claimed he fell some twenty-nine feet from the sidewalk and his witness claimed that the place was within a few feet or inches of the sidewalk; the plaintiff was not in or upon the driveway on that day; he in fact fell on the public sidewalk; the driveway was free and clear of snow and ice that day though there were some patclzes of ice and snow on the sidewalk; the defendants neither knew of nor had reason to anticipate the presence of the plaintiff on the driveway on that day; and if the plaintiff was then on the driveway he was not there on any business and he was not there lawfully.

The first of the plaintiff's three claims referred to above relates to the fact that the court, having mentioned that there was evidence offered by the plaintiff of two different locations as being the place of his fall, continued: ‘The plaintiff is not entitled to a verdict on a claim of injury received at two different places. It is his duty to prove the particular place and that this particular place complained about was defective so as to make it not reasonably safe. * * * I am just discussing, the certainty and identity of the place where the man fell, because it is that thing that must be the proximate cause of the injury, not any place, not two places, not the driveway as a whole but the place where he fell.’ As indicated by his brief, the...