Pastorello v. Stone

• Decision Date: 31 March 1915
• Citation: 89 Conn. 284,93 A. 529
• Court: Connecticut Supreme Court
• Parties: PASTORELLO v. STONE et al.

93 A. 529

89 Conn. 284

PASTORELLO

v. STONE et al.

Supreme Court of Errors of Connecticut.

March Term, 1915.

Appeal from Superior Court, Litchfield County; James H. Webb, Judge.

Action by John Pastorello, administrator, against Frederick H. Stone and others, for the death of plaintiff's intestate. Demurrer to complaint sustained, and plaintiff appeals. No error.

Caleb A. Morse, of New Haven, and Thomas J. Wall, of Tovrington, for appellant. Howard F. Landon, of Salisbury, and Wilbur G. Manchester, of Winsted, for appellees.

THAYER, J. The defendants own and occupy a mill and mill privilege and pond abutting southerly on Boyd street in the borough of Winsted and abutting westerly on land owned by the parents of the intestate. The mills of the defendants were situated about three rods northerly of Boyd street and an entrance or road extended northerly from the street to the mills, abutting easterly on the pond. Near the street this entrance or road to the mills was partly on the Pastorello home lot and partly on land of the defendants, but the northerly part of the entrance or road was wholly upon the defendants' land. There was no division fence between the Pastorello land and the land of the defendants and no fence or railing between the entrance or road and the pond. At the upper end of the entranceway the defendants maintained a bridge, without railings, across the pond to one of their mills on the easterly side of the pond. The entranceway and bridge were used by the public as an entrance to the defendants' premises. The land and entrance to the defendants' premises just south of the unguarded bridge in front of the factory and to the south of the pond and west of the entrance to the factory was used by children as a playground to the knowledge of the defendants and was a dangerous place, and children had, to the knowledge of the defendants, fallen into the water from the side of the unguarded bridge and roadway. On October 20, 1913, the plaintiff's intestate, with other children, was playing at or near the end of the bridge and wholly upon land of the defendants, when he slipped and fell from the bridge or embankment into the water and was drowned. The defendants maintained no sign or warning of any kind giving notice of the dangerous character of the place. These are the substantial facts alleged in the complaint, and it is alleged that the death of the intestate was caused by the defendants' negligence in leaving the bridge and entrance to the mill unguarded by railing or fence, and without any sign or other warning of danger, when they had reason to anticipate that children would come upon the premises, and when they knew of accidents which had occurred and had been warned of the danger. The complaint was demurred to upon the ground that it does not appear from the complaint that the intestate was rightfully upon the defendants' land when he slipped and fell into the pond; that the complaint alleges no facts which raise a duty on the part of the defendants toward the intestate which they left unfulfilled, and because the complaint shows no active negligence toward the...