Rescigno v. Rosner
| Decision Date | 08 April 1938 |
| Citation | 198 A. 751,124 Conn. 253 |
| Parties | RESCIGNO v. ROSNER. |
| Court | Connecticut Supreme Court |
Appeal from Superior Court, New Haven County; Patrick B O'Sullivan, Judge.
Action by Anthony Rescigno against Max Rosner to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant in permitting a piece of glass to protrude from a show box in his store. The case was tried to the court. Judgment for the plaintiff, and defendant appeals.
No error.
A grocery delivery boy who was injured by broken glass projecting from a show box did not assume the risk of such danger where he acted on grocer's promise to repair box in continuing his employment.
Alexander Winnick and Max H. Schwartz, both of New Haven, for appellant.
Dominic W. Celloto, of New Haven, for appellee.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.
The complaint in this case, by an employee against his employer, claimed negligence on the part of the defendant in permitting a dangerous condition to exist in a store. The defendant answered and filed a special defense alleging assumption of risk. The reply denied the special defense, alleging that in continuing in the defendant's employ he was acting on the promise of the defendant to remedy the dangerous condition.
The finding, with such corrections as can be made therein, discloses the following facts: At the time of the accident, which is the basis of this suit, the defendant was the owner of a grocery store on Grand avenue in New Haven and employed the plaintiff as delivery boy and to do odd jobs around the store. A counter ran across the rear of the store to within 2 1/2 feet of a series of small show boxes along the left wall as one faces the rear of the store. This space was customarily used by the plaintiff and others in passing from the store proper to a room at the rear used as an office and storeroom. The show boxes were set one on the other and were about 1 1/2 feet wide, a foot high, and 2 feet deep. In the front of each box was a glass 15 inches long and 5 inches high to display the merchandise therein. On Saturday night, February 20, 1937, the glass in one of the show boxes opposite the rear counter was found to be badly cracked, but at no time prior to the accident was any of the glass seen to protrude. This condition came to the attention of both plaintiff and defendant at that time. On the following Monday morning the plaintiff called the attention of the defendant to this condition because of the danger of injury from it. At that time the defendant promised the plaintiff that he would replace the glass and the plaintiff, believing the defendant would keep his agreement, continued in the employ of the latter. On the following day the plaintiff was told to sweep up the front of the store. He procured a broom and bushel basket, filled the basket with rubbish, and carried it to the rear of the store. As he was passing through the passage way, a ‘ V'-shaped piece of glass, several inches long, which protruded from the broken case, pierced his leg causing severe injury.
The attacks on the finding not recognized in this statement relate mainly to inferences drawn from facts in evidence and included in the finding. Such inferences, if reasonable, are proper. Meagher v. Colonial Homes Co., 109 Conn....
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