Parker v. City of Hartford

• Citation: 122 Conn. 500,190 A. 866
• Court: Supreme Court of Connecticut
• Decision Date: 04 March 1937
• Parties: PARKER v. CITY OF HARTFORD.

190 A. 866

122 Conn. 500

PARKER v. CITY OF HARTFORD.

Supreme Court of Errors of Connecticut.

March 4, 1937

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

Action for personal injuries allegedly caused by a defective street by Emerson J. Parker against the City of Hartford. From a judgment on a jury's verdict for plaintiff in the superior court, defendant appeals.

No error.

A. A Ribicoff, A. S. Bordon, Harold Borden, Asst. Corp. Counsel and Vincent W. Dennis, Corp. Counsel, all of Hartford, for appellant.

Robert P. Butler and Paul Volpe, both of Hartford, for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

BANKS Judge.

Plaintiff suffered injuries as the result of stepping into a gully on Pembroke street in the City of Hartford. From a verdict and judgment in his favor the defendant appealed, alleging error in the denial of its motion to set aside the verdict, in the charge of the court, and its failure to charge upon certain aspects of the case, and in a ruling upon evidence.

The jury could reasonably have found the following facts: Pembroke street is a public street, legally laid out and accepted in 1913, running westerly from Blue Hills avenue, and is crossed by Cornwall street one block west of Blue Hills avenue. On the northerly side of the street west of Cornwall street there are three houses, in the most westerly of which the plaintiff resided. The surface of the traveled portion of Pembroke street from its eastern terminus to a point about ten feet east of the west property line of the plaintiff's premises is macadam, and on the north side of the street there is a finished sidewalk and curb and gutter up to about the same point. From this point to the westerly terminus of the street, a distance of several hundred feet, it is rough graded, and at either side of the roadway the space reserved for sidewalks is rough graded. The surface of this portion of the street is of clay, in which there are numerous holes and gullies. There is a sewer, constructed by the defendant city, running throughout the length of the street substantially in the center of the roadway, with manholes opening into the surface of the street.

For more than two years prior to the date of the accident the street throughout its entire length had been open to public travel and there had been some use of the rough graded portion of it by vehicles and pedestrians. On the day of the accident there was a gully about twelve inches deep and varying in width from eight to twelve inches, beginning at the end of the curb and gutter on the north side of the street and extending westerly in the rough graded portion of the roadway a distance of about seven and a half feet. The easterly part of the gully was concealed by a growth of grass, but the westerly portion was open and visible. This condition was one of long standing. The plaintiff knew of the existence of the gully west of the grass but did not know that it extended under the grass. A dog belonging to a member of plaintiff's family was tied by a leash to an electric light pole standing on the north side of the street between the rough graded sidewalk and roadway several feet west of the end of the finished sidewalk and curb. The dog became engaged in a fight with another dog, and the plaintiff, who was working in the garden in front of his house, started to go to the pole to unleash his dog. He stepped off the curb onto the macadam surface of the road, intending to go around back of the dogs, stepped into the portion of the gully covered by grass, and was injured.

The defendant claims that the jury could not reasonably find that in allowing this gully to exist it breached its statutory duty to keep its streets in repair. The existence of the gully is conceded. That it was a defect in the highway is incontrovertible. Defendant's contention is that the portion of Pembroke street west of the plaintiff's property was an unimproved street not open to public travel and that it was under no duty to keep it in repair or remedy any defects existing in it. There is no question here of dedication or acceptance of the street as a public street. It is conceded that it is a public street. As such it was the defendant's duty to keep it in repair. It is not the case of a mere paper layout of a street. It was worked to grade and open to public travel. There was evidence that at one time there had been a fence across the street where the macadam surface ended but that it had been removed some two years before the accident. Being a public street, worked to grade and open to public travel, it cannot be said that the city was under no duty with respect to its supervision and maintenance. It was its duty to use reasonable care to keep the street in reasonably safe condition in view of its character and location and of the travel upon it. This travel was slight, but the jury could reasonably find that the gully was...