Sheeler v. City of Waterbury

• Decision Date: 10 July 1951
• Citation: 82 A.2d 359,138 Conn. 111
• Court: Connecticut Supreme Court
• Parties: SHEELER v. CITY OF WATERBURY. Supreme Court of Errors of Connecticut

Page 359

82 A.2d 359

138 Conn. 111

SHEELER v.CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

July 10, 1951.

George J. Crocicchia, Corp.Counsel, and Philip N. Bernstein, Asst. Corp.Counsel, Waterbury, with whom, on the brief, was Thomas F. Minuto, Waterbury, for appellant(defendant).

Raymond J. Quinn, Jr., Waterbury, with whom was James J. Shea, Waterbury, for appellee(plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

O'SULLIVAN, Judge.

The plaintiff sued to recover damages for personal injuries suffered by a fall upon a sidewalk in the defendant city.She relied on two causes of action.The jury returned a general verdict for the plaintiff.The defendant's appeal is from the denial of its motion to set the verdict aside and from the judgment.It is necessary to consider only the latter phase of the appeal.

The plaintiff claimed to have proved the following facts: Savings Street is a public highway in the city of Waterbury.In the vicinity of the Armory building, so-called, the southerly sidewalk, at the time in question, had a westerly downgrade of 13.6 per cent.Prior to 1940 the Armory building had been used as a garage.Automobiles entered it over a ramp rising from the street level.The ramp had been so constructed as to cause a cross pitch in the sidewalk far greater than approved engineering standards permitted.It created a structural defect for pedestrians.The defendant had actual notice of its existence.The plaintiff made no claim that the defendant had built the ramp.

On the evening of November 27, 1949, the plaintiff was walking westerly on the sidewalk.She was wearing low-heeled shoes and rubbers.During the morning two inches of snow had fallen and the structural defect had become more dangerous by reason of snow and ice still upon it.While proceeding over the section of the walk where the ramp was located, she slipped and, in falling, sustained various injuries.The defendant's claims of proof need not be recited.

The complaint was in two counts.The first alleged that the plaintiff's injuries were caused by the defective structural condition of the sidewalk, made more dangerous by an accumulation of snow and ice thereon.This cause of action was based upon the provisions of the defendant's charter.21 Spec.Laws 634, § 249;Krooner v. City of Waterbury, 105 Conn. 476, 480, 136 A. 93.The second count alleged that the condition of the sidewalk amounted to a nuisance which proximately caused the plaintiff's injuries.

The defendant requested the court to submit four interrogatories to the jury.Two were addressed to the first count, and two to the second.The obvious purpose of the defendant was to avoid the implication of a general verdict.Our rule is that, where a complaint is divided into counts and a general verdict is returned, it will be presumed, if the charge and all rulings are correct on any count, that damages were assessed as to that count, and the verdict will be sustained.Ziman v. Whitley, 110 Conn. 108, 112, 147 A. 370;seeMeglio v. Comeau, 137 Conn. 551, 553, 79 A.2d 187.The preferable method for a defendant to follow as a protection against such an implication is to request the court to obtain a separate verdict on each count.Aaronson v. City of New Haven, 94 Conn. 690, 697, 110 A. 872, 10 A.L.R. 328.We have, however, approved the use of interrogatories.Ross v. Koenig, 129 Conn. 403, 405, 28 A.2d 875;Ford v. H. W. Dubiske & Co., 105 Conn. 572, 582, 136 A. 560.The defendant chose this latter method.While the interrogatories were not couched in language best adapted to the end for which they were intended, they did put the court on notice of the defendant's desire to have the jury reveal the basis of any liability which they might find.The court submitted an interrogatory in the following form: 'Do you find that the condition complained of was a nuisance?'The jury answered in the affirmative.For reasons which will appear, this did not adequately protect the defendant.

The submission of interrogatories ordinarily rests within the court's discretion.O'Donnell v. Borough of Groton, 108 Conn. 622, 627, 144 A. 468.This rule is subject to the exception that where the complaint contains two or more counts, or when two or more causes of action are incorporated in one count, the defendant has the right to save himself from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories.Callahan v. Jursek, 100 Conn. 490, 493, 124 A. 31.In such a situation, it is the duty of the court to grant the defendant's request.Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855;Pentino v. Gallo, 107 Conn. 242, 243, 140 A. 105.Its failure to do so in the case at bar was erroneous.

Under the court's instructions, it was possible for the jury to find for the plaintiff...