Sedita v. Steinberg

• Decision Date: 30 July 1926
• Citation: 105 Conn. 1,134 A. 243
• Court: Connecticut Supreme Court
• Parties: SEDITA v. STEINBERG ET AL.

134 A. 243

105 Conn. 1

SEDITA v. STEINBERG ET AL.

Supreme Court of Errors of Connecticut.

July 30, 1926

Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.

Action for damages for personal injuries by Pedro Sedita against David Steinberg and others. From a judgment on a directed verdict for defendants, plaintiff appeals. Error, and new trial ordered.

Charles A. Watrous and Arthur W. Chambers, both of New Haven for appellant.

Walter J. Walsh and John J. Sullivan, Jr., both of New Haven, for appellees.

HAINES, J.

An examination of the record shows that upon the evidence before them the jury could reasonably have found these facts: On July 1st, the day of the injury, the plaintiff, Peter, just under nine years of age, and another boy named William slightly younger, were sent, by the mother of the latter, to a store to buy some articles for her. Proceeding along the concrete sidewalk upon this errand, they reached a point in front of the premises of the defendants where the concrete was extended to the front of the buildings at Nos. 680-682 Howard avenue. At this point the concrete of the sidewalk proper and of the intervening space to the buildings presented an uniform surface unobstructed by a fence or any other structure. In this concrete, about five feet inside of the inner side of the sidewalk proper, was the projecting end of a pipe, three inches or thereabouts in diameter, and standing about two or three inches above the surface of the concrete, and about eight or ten feet from the building. This was the intake of an underground gasoline tank of about 1,100 gallons capacity. The tank had not been used for about two years, but contained some gasoline; the amount being uncertain. The projecting end of the pipe was for a long time protected with a screwcap, but on the day in question and for at least two months prior to the accident there had been no cap there, and, though the pipe was partly plugged, it was open sufficiently so that the gasoline could be seen by looking down through the opening. The boys saw this gasoline but thought it was water. The garage, in connection with which this tank had been used, had been vacant for some months. It was owned by the defendants, who also owned the dwelling house which adjoined it. The defendants, in their brief, seem to grant the assumption, based upon the plaintiff's evidence, that reasonable care on the defendants' part would have apprised them that the tank with gasoline and explosive vapors in it was thus open. As the boys reached this point while going upon their errand, they passed from the inner edge of the sidewalk to the vicinity of the pipe opening. They had with them a so-called " bing-bang" toy pistol, which was fired without ammunition, by acetylene gas generated by combining carbide and water in a chamber in the pistol. When fired it produced a loud noise and a flash from the end of the barrel. The boys had taken turns firing this toy pistol, and, as they reached this pipe, the plaintiff pointed the pistol into the opening and pulled the trigger, firing down into what he supposed was the water, driving down in this way whatever plug or part of a plug was in the pipe. The result was an explosion which caused the injuries to the plaintiff which are the basis of this action.

The defendants made the threefold contention (1) that, upon the evidence before the jury, the plaintiff was a trespasser, so the defendants owed him no duty; (2) that the duty which the defendants owed, if any, was to travelers upon the highway, and the plaintiff was not a traveler; and (3) that the direct and proximate cause of the plaintiff's injuries was his own tortious act, as distinguished from negligence. The trial judge seems to have shared this view, for in directing the verdict, he said to the jury:

" The plaintiff, Peter, left the sidewalk used for the public and went onto the land of the defendants, and there, with a pistol which he discharged into the pipe, blew out the plug therein and caused an explosion, as substantially testified to by him. In doing that he was a trespasser and the defendants owed no duty to him to keep the premises in safe condition for such use or acts by him."

A verdict may be directed where the evidence is undisputed, where the only question is one of law, where the plaintiff's evidence is such that, if a verdict was rendered in his favor, it would properly be set aside, where reasonable men cannot differ as to the verdict which ought to be rendered, or where more than one conclusion is not reasonably open to the jury upon the evidence. Heringer v. Underwood Typewriter Co., 103 Conn. 675, 131 A. 322; Swayne v. Connecticut Co., 86 Conn. 439, 85 A. 634, 737; Robbins v. Hartford City Gas Light Co., 82 Conn. 394, 74 A. 113.

We are thus led to consider whether, on the construction of the plaintiff's evidence most favorable to him, the jury could lawfully have reached no other verdict than the one the court directed. The court construed the evidence to require a holding that the plaintiff did not have the status of a traveler upon the highway, but was a trespasser upon the defendants' property to whom the defendants owed no duty of care, and that his injury was the direct result of his own tortious act.

In determining the legal status of the plaintiff, and the resulting duty of the defendants to him, it should be noted that the jury might have found the space between the buildings and the curb was entirely open, and apparently open for the use of all travelers who might choose to avail themselves of it. It was all of concrete, of grade with, and not marked off from, the sidewalk proper, and that about five feet inside the imaginary line of the sidewalk was the open pipe with gas and explosive vapors below that opening and in the tank.

The defendants were chargeable with knowledge of the natural and probable consequences of maintaining such a structure in the pavement thus thrown open for public use, and of the danger of an explosion by the dropping of a lighted match or cigarette, by the fireworks which are commonly set off in the streets at that time of year, or by the play and pranks of children upon this open pavement, which, by reason of its width and smoothness, was a place where in passing to and fro upon this sidewalk their play was liable to take them; so, possibly, by the backfire of an automobile motor, and by many other not improbable happenings which might serve to ignite these inflammable gases. All these were things for the owners of this tank to take account of.

If the jury found the tank to be of this character, it would have closely paralleled the case of a gas company which negligently permitted gas to escape from a defective gas main, with the result that when some one struck a match an explosion resulted. The company was held responsible. Koelsch v. Philadelphia Co., 152 Pa. 355, 364, 25 A. 522, 18 L.R.A. 759, 34 Am.St.Rep. 653.

If the owner of a thing which is capable, in its nature, of doing injury to persons, leaves it exposed and unguarded in a public place, and one be injured, as a natural and probable consequence, without fault on his own part, the owner is responsible. The injury, however, must be the direct result of the defendant's misconduct, and it will not be considered too remote if, in the usual experience of mankind, the result ought to have been apprehended. Lane v. Atlantic Works, 111 Mass. 136, 139; Lombardi v. Wallad, 98 Conn. 510, 519, 120 A. 291.

The defendants deny responsibility on the ground that the tank was on their property and not within the limits of the public walk, so that in going to this pipe the plaintiff was a trespasser. In Crogan v. Schiele, 53 Conn. 186, 1 A 899, 5 A. 673, 55 Am.Rep. 88, the plaintiff was injured by reason of an unguarded opening seven feet two inches inside the line of the sidewalk, and located on the defendant's land, being an open space between the front of the factory and the sidewalk. This space and the sidewalk...