Smith v. City of New Haven

• Decision Date: 11 December 1956
• Citation: 144 Conn. 126,127 A.2d 829
• Court: Connecticut Supreme Court
• Parties: Charles SMITH v. CITY OF NEW HAVEN et al. Supreme Court of Errors of Connecticut

Page 829

127 A.2d 829

144 Conn. 126

Charles SMITH v. CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

Dec. 11, 1956.

T. Holmes Bracken, New Haven, for appellant (defendant esposito).

James O. Shea, New Haven, for appellee (plaintiff).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

BALDWIN, Associate Justice.

The plaintiff brought this action against the city of New Haven and Eustacio Esposito. In the first count of his complaint he sought recovery against the city for a claimed defect in a public highway. The court directed a verdict in favor of the city, judgment was rendered upon this verdict, the plaintiff took no appeal, and further consideration of this feature of the case is not required.

In a second count addressed to the defendant Esposito, the plaintiff sought to recover upon two theories--that Esposito was negligent and that he had created and maintained a nuisance, thereby causing the plaintiff's injuries. The jury returned a verdict in favor of the plaintiff against this defendant, judgment was rendered upon it, and he has apealed. He assigns error in the charge, in the granting of permission to amend the complaint, in rulings on evidence, and in the refusal of the court to set aside the verdict as excessive.

The plaintiff claimed to have proved the following facts: He lived on the second floor of a two-family house located at 34 Morse Place in New Haven and owned by Esposito, hereinafter called the defendant. Late in the evening of February 11, 1953, the plaintiff returned to his home from a social engagement in New Haven, alighted from a taxicab, and went to his mailbox to pick up the mail. The mailbox was located near the paved portion of the roadway and some distance away from a flight of steps ascending a bank and leading to the walk to the front entrance to the house. When the plaintiff was returning from the mailbox to the steps, he fell over a water gate and broke his ankle. This water gate was located within the limits of the public highway, but outside of the paved portion, in front of the house where the plaintiff lived. Had there been an improved sidewalk there, the water gate would have been within its limits. The water gate was four and one-half inches in diameter and protruded, on one side, one and one-half inches above the ground, and on the other, three and one-half inches. It had been installed when the house was built in 1950 by the defendant and was maintained by him. When it was inspected in 1950 by the city plumbing inspector, it protruded as it did when the plaintiff was injured. The public had the right to use the area where the water gate was placed in traveling up and down Morse Place, although this portion of the highway was incorportated within the lawn in front of the house where the plaintiff lived. When the plaintiff rented the premises from the defendant in February, 1952, he did not agree to perform services for the defendant upon the premises. He and another tenant, however, occasionally cut the grass in front of the house. The water gate was at all times under the control of the defendant. The steps and walk leading to the house were used by the occupants of both floors of the dwelling.

The defendant made the following claims of proof: The installation of the water gate so that it protruded an inch or more above the ground and its maintenance in that condition were proper to allow it to be quickly found should an emergency arise, to keep the grass from covering it and the dirt from seeping in, and to better protect it from injury. The defendant did not have control of the water gate because the tenants were to take care of the premises outside of the house. The water gate stood up above the ground when the plaintiff began his tenancy and he know of its location and condition.

The parties conceded that the water gate was located within the limits of the public highway and that the defendant's premises extended to the center line of the highway subject to the public easement for travel.

We shall consider first the errors claimed in the charge. A charge must be correct in law, adapted to the issues and sufficient for the guidance of the jury. Boland v. Vanderbilt, 140 Conn. 520, 522, 102 A.2d 362. When a party submits requests to charge on a specific issue or issues, it is the duty of the court to comply in substance, at least, with the requests if they are applicable. Tyburszec v. Heatter, 141 Conn. 183, 187, 104 A.2d 548. In applying these tests, the charge must be considered in its entirety. Danehy v. Metz, 140 Conn. 376, 379, 100 A.2d 843. We shall examine the defendant's claims of error in the charge in the light of these cardinal principles.

The defendant requested a charge to the effect that an abutting property owner has a right to maintain in that portion of the highway owned by him such appurtenances to his premises as do not unreasonably interfere with the use of the highway by the traveling public. He also requested charges dealing with the factors to be considered by the jury in determining whether the water gate did in fact interfere with public travel and whether the plaintiff was using the area where the water gate was placed as a pedestrian traveler in the highway. The court charged the jury that the relationship between the plaintiff and the defendant was that of tenant and landlord. This charge removed from the jury's consideration any question of the duty owed by the defendant as a property owner to the plaintiff as a traveler on the highway. It was favorable to the defendant because it removed from the case one of the grounds of liability claimed by the plaintiff, and the defendant has no justifiable complaint on this feature of the case. The defendant also sought in several specific requests charges dealing with the issue whether the defendant had retained control of the portion of the premises where the water gate was located or whether he had relinquished control to the plaintiff as a tenant. These requests were not given literally by the court but were adequately covered in substance. Giambartolomei v. Rocky De Carlo & Sons, Inc., 143 Conn. 468, 472, ...