Steinecke v. Medalie

• Decision Date: 15 July 1952
• Citation: Steinecke v. Medalie, 139 Conn. 152, 90 A.2d 875 (Conn. 1952)
• Parties: STEINECKE v. MEDALIE. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 875

90 A.2d 875

139 Conn. 152

STEINECKE v. MEDALIE.

Supreme Court of Errors of Connecticut.

July 15, 1952.

James R. Greenfield, New Haven, with whom, on the brief, were Isadore Chaplowe and John H. Sheehan, New Haven, for appellant.

David M. Reilly, Jr., New Haven, with whom on the brief, was David M. Reilly, New Haven, for appellee (defendant).

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

BALDWIN, Associate Justice.

The plaintiff brought this action to recover damages for injuries which he claimed to have suffered when he fell on a snow-covered, icy walk on premises owned by the defendant. The jury returned a verdict for the defendant. The plaintiff has appealed. His appeal from the denial of his motion to set aside the verdict merits no consideration because no evidence is included in the record. In his appeal from the judgment he claims errors in the charge and in the refusal of the trial court to allow an amendment to his complaint.

The plaintiff claimed to have proved the following facts: The defendant owned a three-family house in New Haven. She was in sole control of a walk leading from the public sidewalk to the rear entrance. On February 26, 27 and 28 temperatures were at or below freezing. On February 28 it began to snow about 8 o'clock in the morning and continued all day. By 3:30 in the afternoon the snowfall covered the walk and driveway to a depth of several inches. Between 3:30 ond 4:00 in the afternoon the plaintiff, returning from school, was proceeding along the walk next to the house. His younger brother preceded him and his sister followed. Other children were snowballing them. When the plaintiff arrived at a corner of the house, his right foot caught and he slipped on the snow and ice and fell forward, striking his head against the foundation wall of the house. At that time and place the driveway of which the walk was a part was covered by newly fallen snow, and it was still snowing. During the day and up to the time the plaintiff fell, the driveway had not been cleared of snow or ice, nor had any sand, ashes, salt or other substance been used to keep it from becoming slippery. At the place where the plaintiff fell there had been a patch of matted-down snow and ice for several days.

The defendant's claims of proof were: Between February 11 and 28 there was no snowfall except traces on February 16 and 22. There was no matted-down snow and ice on the walk and driveway, and they were clear prior to the snowfall of February 28. The storm on that day was severe throughout New Haven, and there was a continuous heavy fall of snow beginning at 8 a. m. The plaintiff fell while chasing another boy.

The plaintiff's first claim of error is the refusal of the court to permit an amendment to the complaint. The writ and complaint were issued on October 27, 1949. On September 24, 1951, almost two years later, the plaintiff filed an amendment which stated that the passageway where the plaintiff fell was 'in an unsafe, slippery, defective and dangerous condition, because same was covered with an accumulation of compressed, hard packed, or frozen snow or ice which lay there for some hours before said fall and was covered by falling snow, as a result of which said walk was not reasonably safe for walking.' This amendment also alleged that the plaintiff's injuries were caused by the defendant's negligence in 'failing to remove said hard-packed or frozen snow or ice accumulated on said walk' or to take any action to make the passageway reasonably safe. During the trial a photograph was offered showing that the surface of the passageway was cracked and broken and had holes in it. The plaintiff then sought to amend his complaint further by adding that the passageway was broken, cracked, rutted, uneven and full of holes and thus defective. The court refused to allow the amendment. This ruling was one that rested within the discretion of the court. The proposed amendment would have radically changed the basis of the plaintiff's cause of action from that stated in the complaint, thus either putting the defendant to disadvantage through surprise or requiring a postponement and consequent delay in the trial. See Rusch v. Cox, 130 Conn. 26, 32, 31 A.2d 457. The situation was not comparable to that in Cook v. Lawlor, 139 Conn. 68, 90 A.2d 164. There the request to amend was not made during the progress of the trial. In the instant case we cannot hold that the court abused its discretion in refusing to allow the amendment. Benson v. Morey, 129 Conn. 390, 28 A.2d 843; Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 620, 7 A.2d 847; Beauton v. Connecticut Light & Power Co., 125 Conn. 76, 79, 3 A.2d 315.

The plaintiff has assigned error in the failure of the court to charge on the effect of the structural defects upon the liability of the defendant. There was no basis in the pleadings or the finding for such a charge. There is no merit in this assignment.

The plaintiff further claims that the court erred in charging the jury, in effect, that it would be improper under any circumstances to find liability for a fall on newly fallen snow without explaining the effect of the combination of new snow and the underlying condition. The plaintiff submitted no request to charge on this special feature, nor did he take an exception based thereon at the conclusion of the charge. After the jury had retired for their deliberations they returned to ask the court to 'define the right of the landlord about clearing the snow from the sidewalks or driveways during the progress of a storm.' The court repeated a portion of the charge already given concerning the liability...