Skaling v. Sheedy

• Decision Date: 01 December 1924
• Court: Connecticut Supreme Court
• Parties: SKALING v. SHEEDY ET AL.

126 A. 721

101 Conn. 545

SKALING v. SHEEDY ET AL.

Supreme Court of Errors of Connecticut.

December 1, 1924

Appeal from Superior Court, New London County; L. P. Waldo Marvin Judge.

Action by Elizabeth Ruth Bruce Skaling against Bridget A. Sheedy and others for personal injuries alleged to have been caused by defendants' negligence in maintaining barbed wire fence on their premises adjoining lot whereon children were accustomed to coast. Judgment for plaintiff for $400, and defendants appeal. Error. Judgment set aside, and new trial ordered.

Upon the trial of this action to the jury the plaintiff offered evidence to prove these facts. The plaintiff, a child of seven years, during the winter of 1922, together with other children, was in the practice of coasting upon the land of one Darrow, adjoining the land of the defendants, close to the boundary line between the Darrow and defendants' properties. The defendants had knowledge that children were accustomed to and were using this Darrow land, close to the boundary of their own land, at the time of the injuries sustained by the plaintiff, and for a long time prior thereto. That the defendants had erected and had maintained upon their land near the boundary line between their land and the Darrow land, a line of barbed wire, strung between a stake close to the boundary line on Darrow street, and running back thereon towards the defendants' house for some 17 or 18 feet; the height of the barbed wire being approximately a foot or two from the ground. That the intention of the defendants in the erection of this barbed wire fence was for the purpose of doing harm to persons coming upon their land. That on February 13, 1922 the plaintiff was coasting on a sled on the Darrow land with two other children, and as the sled approached the defendants' property and in close proximity thereto it struck a rock, which deflected the sled from its course, so that it veered toward the defendants' land and caused the plaintiff to fall from the sled and to strike and collide with the barbed wire fence constructed and maintained by the defendants. That, by reason of the plaintiff coming in contact with the barbed wire fence she received severe and painful injuries, leaving permanent scars upon her face and causing a lump to appear and grow upon her ear, the removal of which will require a surgical operation. That the erection and maintenance of the barbed wire fence in the position it was, by the defendants, was, under the circumstances negligence, and was the sole and proximate cause of the injuries to the plaintiff.

The defendants claimed to have proved these facts: That the wire on the defendants' land was a piece of wire, about 7 or 8 feet long, which formerly had been barbed wire, but was old and rusty, and most of the barbs thereon gone, when found by one of the defendants, James H. Sheedy. That this defendant removed with a pair of pliers all barbs remaining on the wire, and then strung the wire on the defendants' land from a point about 2 1/2 feet inside the defendants' property line to a stick located near the veranda of the defendants' house. That the wire was put up by this defendant to keep adults from crossing the defendants' lawn, and wearing a path thereon. Some adults in the neighborhood had previously persisted in crossing the defendants' lawn, and the wire was put up for the sole purpose of preventing trespassers from crossing this lawn, and was wholly upon the defendants' land. That when the plaintiff was thrown from her sled she struck upon the ground, and was thrown into the hedge in front of the defendants' land, and that the cuts and scratches on the plaintiff's face and ear were not caused by coming in contact with the wire, but were caused by the plaintiff being thrown into the hedge.

Frank L. McGuire, of New London, for appellants.

Arthur T. Keefe, of New London, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG, JJ.

KELLOGG, J.

In this appeal the defendants seek a new trial for claimed errors of the court in denying their motion to set aside the verdict, in its charge, and upon rulings upon evidence.

The denial of the motion to set aside the verdict was proper, for the parties were in conflict upon their evidence in many material points, and we have recently said, in Onofrey v. Resnik et ux., 100 Conn. 748, 124 A. 401:

" The evidence was conflicting, and hence the determination by the jury of the issue of negligence and contributory negligence in favor of the defendants must stand, unless we can say as matter of law that the jury's conclusions were such that reasoning minds could not reasonably have reached them."

We cannot say in this action that the jury's conclusions, under the charge as given them, were such that reasoning minds could not reasonably have reached them.

Taking into consideration, now, the claimed errors of the court in its charge to the jury, it is to be noted that this action was originally brought and tried before the jury, upon the allegation of maintaining a barbed wire fence between the land of the defendants and the Darrow land upon which the plaintiff and others were coasting, contrary to the statutes relating to barbed wire fences; but upon the closing of the evidence, and following a motion to direct a verdict for the defendants, the court permitted the plaintiff to file an amendment to the complaint, striking out the words, " contrary to the statutes in such case made and provided," and the case was thereupon submitted to the jury as one founded on common-law negligence. Notwithstanding this, the court read to the jury three statutes of this state, relating to the use of barbed wire along any sidewalk or public highway, to the use of barbed wire between adjoining premises, and to the use of barbed wire connected with or inclosing the grounds of any public school or public building. Following the reading of these statutes...