Petrelli v. City of New Haven

• Court: Connecticut Supreme Court
• Writing for the Court: AVERY, J.
• Citation: Petrelli v. City of New Haven, 116 Conn. 144, 163 A. 759 (Conn. 1933)
• Decision Date: 17 January 1933
• Parties: PETRELLI v. CITY OF NEW HAVEN.

163 A. 759

116 Conn. 144

PETRELLI v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

January 17, 1933

Appeal from Superior Court, New Haven County; Carl Foster, Judge.

Action by Olympia Petrelli against the City of New Haven to recover damages for personal injuries claimed to have been received by reason of an alleged defect in the highway, brought to the superior court and tried to the jury. Verdict for defendant and appeal by plaintiff.

No error.

George E. Beers and Edward S. Snyder, both of New Haven, for appellant.

Louis Feinmark, of New Haven (Morris Melnick, of New Haven, on the brief), for appellee.

AVERY J.

The plaintiff brought this action to recover damages for personal injuries claimed to have been received because of an alleged defect in the highway. On the trial to the jury, she claimed to have proved these facts: April 26, 1931, she went to visit a relative living at 58 Wolcott street in the city of New Haven. The street runs east and west, and the house is on the south side. At the entrance to the house was a walk leading to a tar sidewalk six feet in width in front of the house. There was a binding board at the northerly edge of the tar walk, which was placed there about five years before when it was built. Between the walk and the curb was a space two and one-half feet in width covered with earth.

The plaintiff arrived during the afternoon, and stayed until after dark; and, when she left, she passed out of the entrance and walked across the sidewalk towards an automobile which was parked alongside the curb. When she had proceeded until near the northerly edge of the walk, she tripped and fell, landing in the earthen plot between the walk and curb. She claimed that she was caused to trip and fall by the binding board which projected above the level of the walk and maintained that this constituted a defect in the highway for which the city was liable. The defendant claimed that the sidewalk was not defective at the point where the plaintiff fell, and did not cause her to fall.

The jury returned a verdict for the defendant and the plaintiff appealed. In her appeal, she assigns error in certain rulings on evidence, in the failure of the court to charge in accordance with certain requests, and in the charge as delivered.

The plaintiff introduced evidence that the fall occurred through stumbling upon the binding board at a point where it was in fact dangerous and the sidewalk was not reasonably safe for public travel. The fall occurred nearly a year before the trial, and in the examination the witnesses varied as to the exact place where it occurred. The plaintiff asked several witnesses as to the condition of the binding board at points other than any at which any witness up to that time had testified that the fall occurred. The claim of the plaintiff is that there would naturally be a variation in the testimony as to the point where she fell, and that she ought therefore to be permitted to show the conditions all along in front of the house from which she came. The trial court excluded the question. In the case of such a defect as is here claimed, it was peculiarly important that the jury should consider the condition of the binding board only at the point where the plaintiff fell. The trial court was correct in admitting evidence of that condition only at those places where some witness had testified that she fell. The order of evidence at a trial is in the discretion of the trial judge. Watson v. New Milford, 72 Conn. 561 566, 45 A. 167, 77 Am.St.Rep. 345: Hammond v. Hammond Buckle Co., 72 Conn. 130, 138, 44 A. 25; Finch v. Weiner, 109 Conn. 616, 618, 145 A. 31; Hurlburt v. Bussemey, 101 Conn. 406, 416, 126 A. 273; Oberlander v. Carstens, 151 Mass. 18, 23 N.E. 575, 576; Cartwright v. Hall, 88 Minn. 349, 93 N.W. 117.

A son of the tenant of the property was called as a witness by the plaintiff and testified that the walk was not in a reasonably safe condition. On cross- examination, he was asked if he had ever spoken to the landlord about its condition before the accident. The question was objected to by the plaintiff, and admitted. In this, there was no error; the purpose of the question was to attack the credibility of the witness, and for that purpose it was within the discretion of the court to admit it.

An engineer, who had formerly been in the employ of the city engineering department for many years, was called by the plaintiff and testified that the object of a retaining board was to hold the pavement in place until it hardened, which process would take only a few months, when it should be removed. On cross-examination, he was asked: " Isn't it so that in a majority of the tar sidewalks in the city of New Haven, the molding is allowed to remain after the sidewalk has been laid, for a period of years?" This question might serve to weaken the witness' testimony as to the lack of beneficial value of the binding board, and for this purpose it was admissible.

The owner of the property, called by the...