Tirendi v. City of Waterbury

• Citation: 23 A.2d 919
• Court: Connecticut Supreme Court
• Decision Date: 09 January 1942
• Parties: TIRENDI v. CITY OF WATERBURY.

23 A.2d 919

TIRENDI

v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

Jan. 9, 1942.

Appeal from Superior Court, New Haven County; Foster and Wynne, Judges.

Action by Grazia Tirendi against the City of Waterbury to recover damages for injuries caused by defective highway, brought to the Superior Court where a demurrer to defendant's second and fourth special defenses was sustained and issues were tried to the jury. Verdict and judgment for plaintiff and defendant appeals.

Error, judgment set aside, and new trial ordered.

Before MALTBIE, C. J, and AVERY, BROWN, JENNINGS, and ELLS, JJ.

J. Gregory Lynch and Edward J. McDonald, both of Waterbury, for appellant.

Edward Mascolo, of Waterbury, for appellee.

BROWN, Judge.

The plaintiff recovered a verdict for personal injuries alleged to have been caused by a defective sidewalk of the defendant city. The defendant has appealed from the court's denial of its motion to set aside the verdict. The jury could reasonably have found these facts: About a week and a half prior to September 1, 1938, employees of the W. P. A. in connection with the construction of a catchbasin, made an excavation about four and one-half feet square and four feet deep partly in the southerly sidewalk of Burton Street in Waterbury, and completely covered the hole with planks running in the same direction as the sidewalk. The planks were four or five in number, and though set closely together, were loose and not fastened together by nails, cleats, or in any other way. At about 2 o'clock on the afternoon of September 1st, the plaintiff, in walking easterly on this sidewalk, stepped upon these planks, which slid apart and caused her to fall through into the hole, sustaining injuries. The planks as they were before the plaintiff stepped upon them constituted a dangerous defect in the sidewalk, and this condition had existed for one and one-half weeks. In failing to discover and remedy it, the defendant city failed in the performance of its statutory duty, and its failure was the proximate cause of the plaintiff's injury. The court did not err in denying the motion to set aside the verdict.

Upon its appeal from the judgment, which the defendant has also taken, the only errors assigned requiring consideration relate to the court's charge as to the notice to the defendant of the existence of the defect essential to render it liable. It was not disputed upon the claims of proof that the excavation was made by employees of the W. P. A. at the place in question substantially as above recited, that they had entirely covered it over with planks set closely together laid parallel with the sides of the walk and that when the plaintiff stepped upon them the planks separated and let her down through, causing her injuries. The plaintiff's further claims of proof material upon the issue of notice were that the planks were placed over the hole about one and one-half weeks before the plaintiff's fall, that they were loose and not bound together by cleats, nails or otherwise and that they were dangerous to public travel because of the probability that they would slide apart and cause pedestrians to fall. Those of the defendant were that the planks had been in place about a week before the plaintiff's fall, that at the time the planking was laid each plank was securely nailed to cross pieces or cleats designed to hold the planks together, that these cleats were underneath and so located as to prevent the planks from moving lengthwise, that children had coasted down the hill and over the planks with bicycles and coaster wagons and that at all times until the moment of the plaintiff's accident the planks appeared to be perfectly safe and joined together.

So far as appears by the claims of proof no evidence was offered and no claim was made either that the W. P. A. employees in what they did were agents or employees of the defendant, or that the W. P. A. was a licensee of the defendant in carrying on the work. Accordingly the four essentials to liability of the defendant in this case are: first, a defect in the highway; second, a failure or neglect by the city, after reasonable notice and knowledge, to render it reasonably safe for travel; third, an injury caused by the defect; fourth, injury to the plaintiff while in lawful use of the highway. Frechette v. City of New Haven, 104 Conn. 83, 87, 132 A. 467. We are concerned only with the court's instructions to the jury upon the second of these essentials. There is no...