Sellew v. City of Middletown
| Decision Date | 14 May 1936 |
| Citation | 121 Conn. 331,185 A. 67 |
| Court | Connecticut Supreme Court |
| Parties | SELLEW v. CITY OF MIDDLETOWN. |
Appeal from Superior Court, Middlesex County; John Richards Booth Judge.
Action by Frances P. Sellew against the City of Middletown to recover damages for personal injuries alleged to have been caused by a defective sidewalk, which was tried to the jury. Verdict and judgment for plaintiff, and defendant appeals.
Error and new trial ordered.
Don Cambria, of Middletown, for appellant.
Carlos Ellis, Jr., of Middletown, for appellee.
By agreement of counsel the case was heard by four judges MALTBIE, C.J., and HINMAN, BANKS, and BROWN, JJ.
The plaintiff offered evidence to prove that while walking on a concrete sidewalk of Main street in Middletown, at a point just north of a driveway leading into the Holy Trinity Church property, she stepped on rolling stones which caused her to fall and suffer severe injuries; that the walk had an even unbroken surface, but was covered for its entire width with pebbles or stones, the size of marbles or smaller, and that similar stones had been on the walk for three or four months previously; that this driveway to the west of the sidewalk had a dirt fountain and a top-dressing of small stones or trap rock.
The defendant offered evidence to prove that the plaintiff made no attempt to avoid walking over the stones; that others had walked over the place shortly before she did without falling or being injured; that rain and parking cars would carry stones onto the walk from the land abutting on the west and from the driveway on the south; that there was rain on the day before the plaintiff's fall; that it was the custom of the attendant of the gasoline station just west of this place, to sweep off the stones at this point that the walk where she fell was swept daily by the church sexton; and that it had been swept clear of stones on the morning of that day.
A ruling on evidence assigned as error relates to a pan of stones or pebbles which were testified by the plaintiff to be similar to those which were there on the walk, and which were offered and admitted as indicative of the size and type of the stones upon which she fell. The plaintiff's testimony was sufficient to support the court's exercise of its discretion in admitting the stones as it did. Beattie v. McMullen, 82 Conn. 484, 495, 74 A. 767. The only purpose served by such evidence is to illustrate to the jury the actual existing situation. It is only where it appears that it can be of real assistance and is not likely to be given undue weight by them, that the trial court may in its discretion admit it.
The defendant assigns error in the court's failure to charge that the defendant was entitled to the benefit of whatever was done by the abutting property owners to keep the walk at this place in reasonably safe condition for travel. The law is clear that, if what was done by such owners, or either of them, toward keeping the walk free from stones, either rendered the walk reasonably safe at the time of the accident under all the circumstances and conditions surrounding the city, or was an act which, if done by the city, would have been sufficient to show reasonable care by it under all the circumstances and conditions, such act would relieve the city of liability. Kristiansen v. Danbury, 108 Conn. 553, 559, 143 A. 850; Wade v. Bridgeport, 109 Conn. 100, 108, 145 A. 644. The court made no reference to this principle of law in its charge, although the significance of its application, in the light of the defendant's evidence that it was swept by the abutting owners, is apparent. " ‘ It is the duty of the court in every case to give to the jury sitting in that case such instructions as are applicable to the issues raised and sufficient for their guidance in coming to a verdict in the case before them." ’ Lindquist v. Marikle, 99 Conn. 233, 236, 121 A. 474, 475; Bjorkman v. Newington, 113 Conn. 181, 185, 154 A. 346; Lovell v....
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Young v. Price
...to be proven. There is an implication that demonstrative evidence must be based upon undisputed preliminary facts. Sellew v. City of Middletown, 121 Conn. 331, 185 A. 67; Toole v. Franklin Inv. Co., 158 Wash. 696, 291 P. 1101; Finch v. W. R. Roach Co., 295 Mich. 589, 295 N.W. In Sellew v. C......
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