Ruocco v. United Advertising Corp.

• Decision Date: 27 November 1922
• Citation: 119 A. 48,98 Conn. 241
• Court: Connecticut Supreme Court
• Parties: RUOCCO v. UNITED ADVERTISING CORPORATION et al.

119 A. 48

98 Conn. 241

RUOCCO v. UNITED ADVERTISING CORPORATION et al.

Supreme Court of Errors of Connecticut.

November 27, 1922

Appeal from Superior Court, New Haven County; John E. Keeler and Isaac Wolfe, Judges.

Action by Salvatore Ruocco, administrator, against the United Advertising Corporation and another. From judgment for defendants, plaintiff appeals. Reversed and remanded.

This action is brought against the United Advertising Corporation which maintained a garage having a door opening onto the sidewalk in Franklin street in New Haven, and against the United Illuminating Company, which furnished electricity to the first-named defendant for operating its garage. The allegation as to the mode in which the deceased came to his death is that, while standing on the sidewalk, he " reached over and touched" a chain hanging close to the inside of the open door of the garage, " with his hand or with a toy gun which he held in his hand." On coming in contact with the chain, the decedent received a charge of electricity which caused his instant death. It is alleged that the dangerous condition of the chain was due to the negligence of both defendants. The defendant the United Advertising Corporation demurred to the complaint on the ground that it " fails to allege facts to show that the plaintiff's intestate occupied a status other than that of a trespasser upon the property of the defendant at the time of the alleged wrongful acts of the defendant," and that " it fails to allege a willful and intentionally wrongful act by the defendant toward the plaintiff's intestate." This demurrer was sustained because upon the allegations of the complaint the intestate was as to some part of his person upon the property of the defendant corporation at the time of the accident, and that the defendant owed the decedent no duty to keep its property in a safe condition for his use.

Webb J., dissenting.

George E. Beers and William H. Russell, both of New Haven, for appellant.

De Lancey S. Pelgrift, of Hartford, for appellee United Advertising Corporation.

BEACH J.

The demurrer to the substituted complaint admits, of course, its allegations of fact; that the doorway in question opened on the sidewalk; that although the sidewalk extended somewhat beyond the highway line, there was nothing to indicate the location of the dividing line between the highway and the defendant's property; that the public was accustomed to walk in the space immediately adjacent to the door; that the chain was in such a position that when the door was opened it could readily be touched by one on the sidewalk and either actually or apparently within the highway lines; that the door was customarily left open; that travelers in the proper use of the highway were apt at any time to so conduct themselves as to come in contact with the chain; that the decedent came in contact with the chain in the course of his lawful use of the highway, and that the chain became and remained charged with a dangerous current of electricity because of the failure of both defendants to properly install the wiring and other electric apparatus in the garage and to keep it in proper shape. There is also an allegation that the fact that the chain was charged with a dangerous current of electricity " was well known to both defendants, or had they used due care would have been known to them." This is not a well-pleaded allegation of actual knowledge of that fact prior to the accident. In O'Keefe v. National Folding Box & Paper Co., 66 Conn. 38, 45, 33 A. 587, 588, where a complaint containing a similar allegation was held insufficient on demurrer, we said:

" The plaintiff alleges that the defendant knew, or ought to have known, the effect that steaming colored paper in a hot box would or might have on the health of those who conducted the process. This, construed as it must be most strongly against the pleader, amounts simply to a charge that the defendant ought to have known the effect the work might have on those engaged in it."

See, also, Bryant on Code Pleading (2d Ed.) p. 000.

It is, however, a good averment that the dangerous condition of the chain was discoverable by the exercise of due care, and thus the real issue is narrowed down to the question whether upon the allegations of the complaint the defendant the United Advertising Corporation owed to the plaintiff's decedent any legal obligation to use care in maintaining its premises in a reasonably safe condition.

The general rule that the owner of property owes no duty to...