Tiesler v. Town of Norwich

• Decision Date: 04 October 1900
• Citation: 47 A. 161,73 Conn. 199
• Court: Connecticut Supreme Court
• Parties: TIESLER v. TOWN OF NORWICH.

47 A. 161

73 Conn. 199

TIESLER

v. TOWN OF NORWICH.

Supreme Court of Errors of Connecticut.

Oct. 4, 1900.

Appeal from superior court, New London county; John M. Thayer, Judge.

Action by Bruno Tiesler against the town of Norwich. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint alleged that the defect in the highway consisted in "a large block of stone, nearly two feet long, about one foot wide, and about ten inches high, then being in the traveled way on the sidewalk and street, and projecting about eight inches above the surface of the same." The answer denied the material allegations of the complaint. The finding of the court (Thayer, J.) sets forth the action of the court upon the trial substantially as follows: It was proved and admitted that the stone which caused the accident was a white marble carriage block, resting upon the sidewalk, within a few inches of the gutter, in front of a dwelling house, and. was of the dimensions stated in the complaint; that there was a large tree standing in the sidewalk, in line with this stone, at each end of it, and distant therefrom at one end 4 feet, and at the other end 15 feet; that said sidewalk was on the south side of the street, there being no sidewalk on the north side; that the sidewalk at this point was smooth and level, and its width between the stone and the fence was 5 feet 4 inches; that all the travel on foot through the street was over this south sidewalk; and that it was a much-used walk. The plaintiff offered evidence tending to prove, and himself testified, that the accident occurred in the evening, when it was quite dark, and the ground and the block covered with snow; that he was on the north side of the street, carrying a basket of clothing, and crossed to the south side, where the carriage block was situated; that he stepped upon the block, slipped, stumbled, fell, and received the injuries complained of; that he was familiar with the place, and had known for many years of the stone being there, but did not see it at the time, or think of its being there. The plaintiff, without objection, offered witnesses to prove their opinion that the carriage block rendered the highway unsafe; and the defendant offered witnesses to prove the contrary opinion. The statute required the plaintiff to give the defendant a written notice of the accident, and description of the alleged defect in the highway, and injuries received, within 60 days after date of injury, and, in case the defect claimed was caused by ice and snow remaining on the walk, to give such notice within 15 days. The defendant gave no notice within 15 days, but gave notice within 60 days, describing the alleged defect as consisting in the carriage block. The defendant requested the court to charge as follows: "In regard to whether a carriage block set in its usual place on a highway renders the highway defective, as far as the duty of the town is concerned the law is that the town is not negligent by the fact of its allowing a carriage block of usual size and construction to be maintained at the customary place on a sidewalk or street, provided the object do not project into the usual place of travel so as to be a hindrance to people traveling on the highway there, or a source of danger to persons passing along the usual line of travel, while...