Staples v. Bernabucci

• Decision Date: 05 February 1935
• Citation: 119 Conn. 443,177 A. 380
• Court: Connecticut Supreme Court
• Parties: STAPLES v. BERNABUCCI et al.

177 A. 380

119 Conn. 443

STAPLES v. BERNABUCCI et al.

Supreme Court of Errors of Connecticut.

February 5, 1935

Appeal from Superior Court, Hartford County; Frank P. McEvoy, Judge.

Action by Florence A. Staples against Peter Bernabucci and others to recover damages for injuries claimed to have been received by the plaintiff in falling upon a driveway into a gasoline and parking station, brought to the Superior Court in Hartford county and tried to the jury; verdict for the plaintiff against the defendant Atlantic Refining Company and in favor of the defendants Peter Bernabucci and the 87 Elm Street Corporation; the defendant Atlantic Refining Company filed a motion to set this verdict aside, and the plaintiff filed a motion to set aside the verdict in favor of the defendant Bernabucci; both motions were denied and the plaintiff and the defendant Atlantic Refining Company appealed. No error on Atlantic Refining Company's appeal; error on appeal of plaintiff, and new trial ordered against the defendant Bernabucci. Motion to dismiss appeal as to the 87 Elm Street Corporation granted.

Where witness testified he was familiar with premises on which plaintiff fell, question asked witness if he saw anybody fall there or trip or meet with a mishap there held properly excluded as too broad since, to render such evidence admissible, inquiry should have related to place where injury occurred and to conditions substantially similar to those involved at time of injury to plaintiff.

George E. Beers and William L. Beers, both of New Haven, for appellant-defendant Atlantic Refining Co.

Edward S. Pomeranz and George Miske, both of Hartford, for appellant-plaintiff Staples.

Joseph F. Berry, of Hartford, for appellee Bernabucci.

John Elliott, of New Haven, for defendant 87 Elm Street Corporation.

Argued before MALTBIE, C.J., and AVERY, HAINES, BANKS, and JENNINGS JJ.

AVERY Judge.

The plaintiff brought this action to recover damages for injuries claimed to have been sustained by her in falling upon a driveway of a gasoline and parking station on Elm street in New Haven. Upon the trial before a jury, a verdict was rendered in favor of the plaintiff against the defendant Atlantic Refining Company, and in favor of the defendant Bernabucci; a verdict was directed for the defendant 87 Elm Street Corporation. The defendant Atlantic Refining Company has appealed from the verdict and judgment, and the plaintiff has appealed from the verdict in favor of the defendant Bernabucci. By stipulation of the parties, no claim is made in this court on the issues of negligence contributory negligence, or the amount of the verdict. The essential question is whether the defendant Atlantic Refining Company or the defendant Bernabucci, or both, were in control of the premises where the plaintiff fell.

From the evidence offered, the jury might reasonably have found the facts as follows: On June 30, 1932, the date of the plaintiff's injury, the premises known as 87 Elm street in New Haven were owned by the 87 Elm street Corporation, and included a parking station for hire, in the rear, and a gasoline station and retail tire store in front facing Elm street. The gasoline station office building occupied the easterly front part and the tire store the westerly front part. Between these buildings, a passageway or driveway led off Elm street to the parking lot in the rear. Along the west side of the driveway were located gasoline pumps. To obtain gasoline, a purchaser drove from Elm street into the driveway and beyond the public sidewalk, stopping opposite the pumps. This was also the common entrance to the parking lot and tire store. In 1919, the entire property was owned by Eyler J Todd, and in May of that year he leased to the Atlantic Refining Company for ten years, with an option to renew for the same period, the easterly front part of the premises facing Elm street. Under that lease, Todd reserved to himself and his assigns a right of way twenty feet wide over the leased premises. This passageway extended from Elm street to the rear part of the property not included in the Atlantic Refining Company's lease. It was agreed that this way was to be used in common between the parties as a driveway for the purpose of reaching the rear of the property used for the storing of automobiles for hire. The Atlantic Refining Company agreed to pave this way at its own cost and at the termination of the lease to deliver it up to the owner in the same good order and condition as when originally paved, ordinary wear and tear excepted. In 1919, it paved the passageway and surfaced it with a tar covering. It took possession of the property in this year and conducted thereafter a gasoline station on the leased premises; and, at the end of ten years, it renewed the lease for another ten-year period, but did not then resurface the driveway. The lease as renewed was in effect June 30, 1932.

On February 21, 1921, Todd conveyed all his interest in the premises to the Yale Tire & Rubber Company. This company later changed its name to the 87 Elm Street Corporation. On June 13, 1930, the 87 Elm Street Corporation leased all of the premises, excepting the part already leased to the Atlantic Refining Company, to Peter Bernabucci on an oral month to month arrangement. For two years prior to June 30, 1932, and at that time, Bernabucci conducted a tire store and garage under the name of the National Tire Company in the building leased by him from the 87 Elm Street Corporation. He also conducted the Atlantic gasoline station under an agreement made with the Atlantic Refining Company in June, 1930. Under this arrangement, he took charge of its part of the premises which included its gasoline station, office building, pumps, grease pits, and appliances, all of which that company had installed prior to his management. He sold Atlantic products exclusively, receiving a commission therefor. The station continued to bear the emblem of the Atlantic Company. The Atlantic Refining Company and Bernabucci both paid rent under individual agreements to the 87 Elm Street Corporation; and, under an arrangement between the three parties, an amount due each month from the Atlantic Refining Company to Bernabucci was sent directly to the 87 Elm Street Corporation and credited by it upon the rent. The Atlantic Refining Company knew that its premises, including the passageway, was used by parking station users, and that persons drove over and walked on it in order to reach their cars so parked. This was never objected to. It desired that the passageway should be used by those entering the parking station because it benefited from the actual and probable sale of its products to those so passing.

On June 30, 1932, at about noon, the plaintiff's daughter accompanied by the plaintiff and a friend, drove the plaintiff's car through the driveway and parked it in Bernabucci's parking lot, paying him the sum of 25 cents and receiving a parking ticket. The three women left the premises on foot. They returned for the car about 2:30 p. m. While walking along the passageway, the plaintiff tripped over a hole in the pavement and fell, thereby sustaining injuries. The place of her fall was at a point opposite the pumps on the passageway and was a part of the premises leased to the Atlantic Refining Company. During his occupancy of about two years, Bernabucci never made any repairs to the surfacing of the driveway nor did the 87 Elm Street Corporation. After it paved the way in 1919, the Atlantic Refining Company made no further repairs, nor did it resurface the pavement until after the plaintiff's injuries. On July 9, 1932, and on July 8, 1933, it made repairs thereto at its own expense. These repairs were made in order to encourage patronage on its...