Seeley v. City of Bridgeport

• Decision Date: 04 May 1885
• Citation: 53 Conn. 1,22 A. 1017
• Court: Connecticut Supreme Court
• Parties: SEELEY v. CITY OF BRIDGEPORT.

22 A. 1017

53 Conn. 1

SEELEY

v. CITY OF BRIDGEPORT.¹

Supreme Court of Errors of Connecticut.

May 4, 1885.

Appeal from superior court, Fairfield county.

Action by Frederick O. Seeley against the city of Bridgeport for personal injuries received from a fall by reason of a defective sidewalk. Judgment for plaintiff for $60, and he appeals. Affirmed.

D. B. Lockwood and H. S. Sanford, for appellant.

R. E. De Forest and C. Sherwood, for appellee.

GRANGER, J. This is a civil action claiming damages for an injury received by the plaintiff from a fall upon a sidewalk of the defendant city left in a dangerous condition through the negligence of the defendant. The defendant suffered a default, and was heard in damages. Before the hearing the plaintiff filed a motion to have the damages assessed by a jury. The judge overruled the motion, and assessed the damages at $60. The first reason assigned by the plaintiff upon his appeal is the error of the court in this ruling.

The counsel for the plaintiff claim that, under the provision of the constitution that "the right of trial by jury shall remain inviolate," his right to a trial of his case by a jury cannot be taken away; but, as has been repeatedly held, this provision oi the constitution secures the right of trial by jury only where it existed when the constitution was adopted. It does not create the right; it only preserves it. But it had never been the practice to have damages upon a default assessed by a jury. It had always been done by the court. This provision of the constitution has therefore no application to the case. 2 Swift, Syst. 268; 1 Swift, Dig. 784; Cockran v. Leister, 2 Root, 348; Raymond v. Railroad Co., 43 Conn. 596; Batchelder v. Bartholomew, 44 Conn. 502; Shepard v. Northampton Co., 45 Conn. 58.

Another error is assigned as a ground of appeal in the ruling of the court as to the admissibility of certain evidence. It appears by the finding of the court that the defendant claimed that the place where the plaintiff slipped was outside of the limits of Main street, and on land belonging to the People's Savings Bank, and that it was open to travel, not for the purposes of a sidewalk, but for the accommodation of people going to a store in the building. This evidence was, of course, admissible, it being only claimed by the plaintiff that it was a part of the sidewalk, and of course, that the defendant was bound to keep it in a safe condition; and it not being claimed that it was a dangerous place outside of the sidewalk, but so near as to make it the duty of the defendant to protect the public against it by a railing. Beardsley v. City of Hartford, 50 Conn. 529. This point being proper to be proved, the question...