Mercier v. Naugatuck Fuel Co.

• Decision Date: 24 February 1953
• Citation: 139 Conn. 521,95 A.2d 263
• Court: Connecticut Supreme Court
• Parties: MERCIER v. NAUGATUCK FUEL CO. Supreme Court of Errors of Connecticut

Page 263

95 A.2d 263

139 Conn. 521

MERCIER v. NAUGATUCK FUEL CO.

Supreme Court of Errors of Connecticut.

Feb. 24, 1953.

Francis J. McCarthy, Hartford, Warren Maxwell, Hartford, for the appellant and defendant.

Edward Seltzer, Hartford, for the appellee and plaintiff.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

O'SULLIVAN, Associate Justice.

The plaintiff brought this action in one count to recover damages for personal injuries occasioned by his falling into a pit located on the defendant's property. A second count was subsequently added to the complaint. The jury returned a general verdict for the plaintiff. The single assignment of error on the defendant's appeal is directed to the court's denial of the motion to set aside the verdict as being contrary to law and against the evidence.

The jury could reasonably have found the following facts: Church Street, a business thoroughfare in Naugatuck, runs north and south. Smith Lane intersects it only from the east. At night, Church Street is well illuminated; Smith Lane is unlighted and dark. On February 16, 1947, the defendant owned the land at the northeast corner of the intersection of the two streets. On that part, right at the corner, it operated a gasoline service station. In connection therewith, it maintained on the premises a deep pit, originally built as an aid in greasing automobiles but, on the date mentioned, used to store a small tank. The pit was located under a hip roof extending northerly from a one-story service building set back from but parallel with and facing Church Street. The northerly end of this roof was supported by two brick columns erected at a sufficient distance from the north face of the service building to permit one to drive an automobile under the protecting roof for the purpose of stopping directly over the pit. At substantially an equal distance to the north of the columns was a large brick building, belonging to the defendant, abutting on Church Street and extending back for a considerable distance.

There were no signs, curbs or markings on the ground to indicate where Smith Lane intersected Church Street. The pavement of the former and the east sidewalk of the latter were of concrete. In color and looks, this concrete was similar to that with which the defendant had covered the exposed surface of the service station, including the area between the two buildings referred to. The surface thus paved was at grade with the adjoining sidewalk on Church Street and with Smith Lane. Because of the layout and the construction of the station, it gave the appearance of having a narrow thoroughfare, running easterly from Church Street, on each side of the one-story service building.

The plaintiff was an inspector for the liquor control commission. He was in Naugatuck after midnight on February 16, 1947, for the purpose of ascertaining whether the state liquor laws were being violated by those in charge of a club located in a building diagonally across Church Street from the service station. In company with a fellow inspector, he had met three officers of the local police department and with them had arranged plans for his mission. It was decided that the plaintiff should enter the building and that, after completing his investigation, he should rejoin the others at an automobile to be parked in Smith Lane to the rear of the defendant's station.

The five men first drove north on Church Street. One of the officers called the plaintiff's attention to the club as their car passed it. Shortly thereafter, the automobile was stopped and the plaintiff got out. The car was then driven to Smith Lane where, with its lights turned off, it was parked facing westerly toward Church Street and with the entrance of the club in view of the officers.

Shortly after 1 a. m., the plaintiff, having completed his investigation, left the club and proceeded to the street. He walked diagonally from the westerly to the easterly side of Church Street in search of Smith Lane, the exact location of which was vague in his mind. It was foggy at the time and visibility was rather poor. The plaintiff saw the service station and what to him appeared to be a public lane. This, however, was the area between the defendant's more northerly building and the two brick columns supporting the roof over the pit. The plaintiff proceeded to walk easterly over this space and had taken five or six steps from the sidewalk when he found himself confronted by a chain. He then took one or two cautious steps to his right and fell into the pit, receiving the injuries alleged.

As previously indicated, the complaint is in two counts. The second is based on the theory that the defendant must assume liability because the pit was maintained so near to the easterly sidewalk on Church Street that use of that walk was made dangerous for those who, like the plaintiff, were travelers upon it. Tenney v. Pleasant Realty Corporation, 136 Conn. 325, 329, 70 A.2d 138; Sawicki v. Connecticut Ry. & Lighting Co., 129 Conn. 626, 631, 30 A.2d 556; Sedita v. Steinberg, 105 Conn. 1, 9, 134 A. 243, 49 A.L.R. 154; Ruocco v. United Advertising Corporation, 98 Conn. 241, 245, 119 A. 48, 30 A.L.R. 1237; City of Norwich v. Breed, 30 Conn. 535, 545; see Beardsley v. City of Hartford, 50 Conn. 529, 538; Hynes v. New York Central R. Co., 231 N.Y. 229, 235, 131 N.E. 898, 17 A.L.R. 803. Whether the facts bring this case within the second count need not be determined. The general verdict which the jury returned for the plaintiff must stand since it can be supported under the first count. Sheeler v. City of Waterbury, 138 Conn. 111, 114, 82 A.2d 359; Knight Realty Co. v. Caserta, 126 Conn. 162, 166, 10 A.2d 597; Ziman v. Whitley, 110 Conn. 108, 112, 147 A. 370; see Meglio v. Comeau, 137 Conn. 551, 553, 79 A.2d 187.

The first count is based on the theory that the plaintiff entered upon the service station as an invitee. This theory rests on the premise that the defendant had paved its station in such a manner as to give to travelers on the adjacent sidewalk the impression that a public passageway ran off at that point from Church Street, and that,...