Thelin v. Downs

• Decision Date: 02 March 1929
• Citation: 109 Conn. 662,145 A. 50
• Court: Connecticut Supreme Court
• Parties: THELIN v. DOWNS ET AL. THELIN v. CITY OF BRIDGEPORT.

145 A. 50

109 Conn. 662

THELIN v. DOWNS ET AL.

THELIN v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from Superior Court, Fairfield County; John Rufus Booth Judge.

Personal injury actions by Anna M. Thelin against Frederick H. Downs and another and against the City of Bridgeport, in the first case for negligence of defendants, and in the second case for defectively maintaining or for maintaining defective highway tried to the superior court. Judgment in the first case for plaintiff, from which defendants appealed, and in the second case for the defendant, from which plaintiff appealed. No error in the first case; error in the second case, and new trial ordered.

Raymond E. Baldwin, of Bridgeport, for plaintiff Thelin.

Robert H. Gould, of Bridgeport, for defendants Downs.

Alexander L. De Laney and Raphael Korff, both of Bridgeport, for defendant.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

MALTBIE, J.

These two actions arise out of the same accident. The plaintiff was standing on the sidewalk of John street, in Bridgeport, waiting for a bus, when, as the court finds, a piece of brick fell from the wall of a building abutting on the sidewalk, striking her on the head and causing her serious injuries. This wall was the outer wall of a building owned by the defendants Downs. Prior to 1918, for approximately 75 years, there had been a building, owned by Stillman and others, where the portion of John street upon which the plaintiff was standing is now located. This building and that of the defendants Downs had been separated by the wall in question, an inside party wall, about 8 inches in width, approximately one-half of which rested on the lands of each of the adjoining owners.

In 1918, the defendant city laid out the portion of John street in question, fixing the northerly line coincident with the boundary line between the properties of the defendants Downs and that of the Stillman lot, thus causing it to run substantially through the center of the wall. In the actual physical development of the street, however, while the city tore down the building on the Stillman lot, it left the wall; had it not done so, it would have left the building of the defendants Downs exposed to the elements, or caused its collapse. The wall, which was built of the sort of brick used for interior walls, less closely laid than would have been the case in an outer wall, was left in a ragged condition at and near the top, and within a year thereafter the defendants Downs placed a lapped tile coping along the top. The wall began to deteriorate, and in 1920 firemen of the city removed certain loose particles.

In 1921 the defendants Downs secured a temporary injunction restraining the city from interfering with the wall, and that injunction has since continued in force. For about five years before the accident the wall was out of repair, portions of brick had become loosened, and pieces of mortar, plaster, and brick had fallen from it. The defendant city had notice of the condition of the wall in ample time to have repaired it before the accident, and the defendants Downs knew, or by reasonable inspection might have known, of its condition in ample time to have repaired it before the accident, and this reasonable care on their part required them to do. The trial court gave judgment for the plaintiff in the action against the defendants Downs, and for the defendant in the action against the city. From the judgment in the former action, the defendants have appealed; and from that in the latter, the plaintiff has appealed.

We consider first the appeal in the action against the defendants Downs. The plaintiff based her claim for recovery upon the negligence of the defendants in failing to maintain the wall in a proper condition or take precautions to safeguard travelers on the street from being struck by brick or loose pieces falling from it, the first count resting upon a claimed obligation of the defendants to exercise precautions as to the whole wall and the second count resting upon a like obligation as to " their part" of the wall. As it does not appear from the finding what part of the wall the brick fell from, the second count must be disregarded.

The defendants seek several corrections in the subordinate facts stated in the finding, but in so far as these are pursued in the appeal, except in one instance, neither there nor in the motion to correct are any reasons assigned which comply with our rules and practice. Siller v. Philip, 107 Conn. 612, 141 A. 872. The defendants seek to strike out in its entirety one paragraph of the finding which embodies a considerable number of facts, many of which are not in dispute, and this in itself would be ground to deny the motion, for the trial court was not bound to cull out an isolated statement and consider that alone. Holczer v. Independent Brass City Lodge, 104 Conn. 539, 540, 133 A. 666. But, passing this, the finding which the defendants really wish to attack, that the plaintiff was struck by a brick which fell from the wall, is a most reasonable inference from the testimony in the case. The only claimed addition to the finding properly before us seeks to insert a statement that in 1920 and 1924 the city made necessary repairs to the wall with the consent of the defendants Downs, and left it in a safe condition; but, as to this claim, the evidence in the record discloses as the sole fact established by undisputed evidence that in the fall of 1924 the city, with the consent of the defendants Downs, did make repairs to the wall. To this extent the addition is made.

The trial court has found that for about 5 years before the accident the wall was out of repair; that the defendants Downs knew or should have known of this; that reasonable care on their part required them to make repairs, but that they in fact neglected to do so, except for the coping placed along the top of the wall shortly after the destruction of the Stillman building; and, as a conclusion, that the neglect of the defendants to maintain the wall in a reasonably safe condition was the proximate cause of the plaintiff's injuries.

The defendants attack this conclusion, but it was a reasonable and legitimate deduction from the other facts found by the court. If, then, the defendants were under a duty to maintain the whole wall in a reasonably safe condition, the plaintiff was entitled to recover. Ruocco v. United Advertising Corporation, 98 Conn. 241, 119 A. 48, 30 A.L.R. 1237; Kane v. New Idea Realty Co., 104 Conn. 509, 515, 133 A. 686; Murray v. McShane, 52 Md. 217, 36 Am.Rep. 367; 3 Shearman & Redfield, Negligence (6th Ed.) § 702.

It is not necessary in this action, in order to establish the defendants' liability, to hold that they, merely by reason of their rights in the wall, came under an obligation to keep the whole in repair. In the proceedings for an injunction against the city, brought in 1921, they alleged that the city was unlawfully threatening to tear down a portion of the wall, with the necessary result of destroying the adjacent portions, which inclosed their building and furnished it with support. They secured an injunction forbidding the city, its agents and employees, from touching, interfering with, altering, or removing the wall, or doing any act whatsoever in, upon, or with relation to it. The court has found that since 1921 they have assumed exclusive control of the wall, and in an exhibit made a part of the finding it appears that as late as June, 1927, they entered into a stipulation with the city that the case in which the injunction was secured should remain upon the docket. They thus definitely took and since have maintained the sole right of control over the wall, and at least temporarily have prevented the city, the only other party interested in it, from making any repairs, except as it was done once with their permission. Now, when from its lack of repair an innocent traveler in the street has suffered injury, they cannot in justice and equity be permitted to deny that the obligation to maintain the whole wall in repair rested upon them at the time of the injury. Baldwin v. Porter, 12 Conn. 473, 482; South Branch R. Co. v. Parker, 41 N.J. Eq. 489, 493, 5 A. 641; Perry v. Calhoun, 8 Humph. (27 Tenn.) 551, 555; Pacific R. R. v. Lindell's Heirs, 39 Mo. 329, 345; Maltman v. Chicago, Milwaukee & St. P. R. Co., 72 Ill.App. 378; 21 Corpus Juris, 1239.

Moreover having assumed and maintained full and exclusive control of the wall, the defendants were as much obligated to use reasonable care to protect a traveler in the street as they would have been, had they been full owners of it. Reinhardt v. Holmes, 143 Mo.App. 212, 224, 127 S.W. 611. In Sellick v. Hall, 47 Conn. 260, 271, we point out that an owner of land over which a street had been laid out, but of which the municipality had not taken possession, would be held liable if a nuisance were maintained on the land, because " the premises would have been entirely within his possession and control as much as before the street was laid out." One who asserts and maintains control of property may be liable for defective conditions existing thereon, though he have in fact no title to it. Inhabitants of Woburn v. Hinshaw, 101 Mass. 193, 199, 3...