Valin v. Jewell

• Decision Date: 19 March 1914
• Citation: 90 A. 36,88 Conn. 151
• Court: Connecticut Supreme Court
• Parties: VALIN v. JEWELL et al.

90 A. 36

88 Conn. 151

VALIN

v. JEWELL et al.

Supreme Court of Errors of Connecticut.

March 19, 1914.

Appeal from Superior Court, Hartford County; William S. Case, Marcus H. Holcomb, and Gardiner Greene, Judges.

Action by Adolphus Valin against Lyman B. Jewell and others, trustees. Judgment for defendants, and plaintiff appeals. No error.

The substituted complaint, upon which the questions presented for review arise, alleges that on February 3, 1912, the defendants were owners of a tenement or dwelling house in Hartford, known as No. 87 Trumbull street; that on this day the plaintiff was a tenant of the defendants and one of the occupants of said tenement; that, "owing to the defective construction of the roof on the porch at the entrance of said tenement, water and melted snow gathering on said roof was allowed to flow off said roof directly on the sidewalk in front of said premises, there being no conductor or any device provided to prevent water flowing from said roof directly onto said sidewalk," and that, "without some device to prevent it, water would be carried by the roof directly onto the sidewalk and accumulate there, and in cold weather freeze, making such sidewalk icy and dangerous to passers-by," as the defendant well knew; that, by force of a penal ordinance of said city, it was the plaintiff's duty, as an occupant of said tenement, to remove snow or ice gathering on said sidewalk; that on said day, while the plaintiff, acting pursuant to the duty and liability imposed upon him by said ordinance, was attempting to remove ice and snow which had formed on said sidewalk from water flowing from said roof, he, without negligence on his part, slipped and fell on the ice so formed, sustaining personal injuries described; and that these injuries so occasioned were wholly due to the negligence of the defendants in suffering the premises to remain in the defective condition described.

The demurrer sustained contained several reasons charging in substance that the complaint failed to show that the defendants were guilty of negligent conduct in respect to the plaintiff, and that it showed that the plaintiff was guilty of contributory negligence and assumed the risk. The only error assigned was the sustaining of the demurrer.

William F. Henney and David B. Henney, both of Hartford, for appellant. Charles Welles Gross, of Hartford, for appellees.

PRENTICE, C. J. (after stating the facts as above). This is an action of tort. If a cause of action is stated, the complaint must show a primary right in the plaintiff invaded by the defendant's wrong. Conduct on the part of the defendants, which amounts to a breach of some duty owed by them to the plaintiff, must appear in the averments.

The facts relied upon as constituting a breach of duty are in substance that the roof on a porch over the entrance to a tenement building owned by the defendants, and of which the plaintiff was one of the occupants as a tenant, was so constructed that water and melted snow gathered upon it, and that no conductor or other device was provided to prevent the moisture thus accumulated from flowing directly upon the sidewalk in front of the premises, where in cold weather it would freeze. The complaint charges that, as the direct result of this condition of things, moisture from rain or snow fall intercepted and diverted from its natural course to the earth by the roof was thereby caused to flow upon the sidewalk, where it froze, forming ice, and that the plaintiff, falling upon the ice so formed, was thereby injured, without fault upon his part. It is conceivable that out of such a situation a breach of duty towards some one might arise. Marston v. Phipps, 209 Mass. 552, 554, 95 N. E. 954; Smith v. Preston, 104 Me. 156, 161, 71 Atl. 653; Hartford v. Talcott, 48 Conn. 525, 532, 40 Am. Rep. 189. It does not, however, follow that the plaintiff was such an one. It remains, therefore, to inquire what duty the defendant owed to the plaintiff which would be invaded by the conduct recited, and what its source.

It is contended that the duty was one due from the defendants as landowners to the plaintiff as a traveler in the adjacent highway. The latter was indeed in the highway when he received his injury, but he was not a traveler thereon. He was not using the sidewalk for purposes of passage, or as a way. He was not attempting to proceed from one point to another, using the sidewalk therefor. Assuming that in reaching the icy spot he might have been using a few feet of the walk for purposes of passage, a fact which does not appear, that use had ceased, and at the time he fell he was engaged in the performance of a duty cast upon him by law to repair a defect in the highway. He was no more a traveler at that time than a laborer engaged in the immediate work of filling a hole in the street. He was engaged in the attempt to remove from the walk the ice and snow which had gathered there, and not in an attempt to go anywhere or to reach...