Vignone v. Pierce & Norton Co. Inc.

• Decision Date: 22 July 1943
• Citation: 33 A.2d 427,130 Conn. 309
• Court: Connecticut Supreme Court
• Parties: VIGNONE v. PIERCE & NORTON CO., Inc.

130 Conn. 309

33 A.2d 427

VIGNONE

v.PIERCE & NORTON CO., Inc.

Supreme Court of Errors of Connecticut.

July 22, 1943.

Appeal from Superior Court, Hartford County; King, Judge.

Action by Frances Vignone, administratrix of the estate of James J. Vignone, deceased, against Pierce & Norton Company, Incorporated, to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of defendant. The case was tried to the jury. Verdict and judgment for plaintiff, and defendant appeals.

No error.

James W. Carpenter, of Hartford, for appellant.

A. W. Firestone, of Hartford (Morton E. Cole and Cyril Cole, both of Hartford, on the brief), for appellee.

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

MALTBIE, Chief Justice.

The plaintiff's intestate, a seveteen-year-old boy, was drowned at Lake Compounce on June 19, 1940, when trying to swim to shore from a rowboat which became filled with water while in use by him and a companion of the same age. The defendant owned and operated an amusement and recreation park at the lake and, as incident to it, owned and let out for hire nine rowboats, of which that being used by the decedent and his companion was one. The complaint charged the defendant with negligence in various respects. The case was tried to the jury, a verdict was rendered for the plaintiff and the defendant has appealed from the judgment entered on it, claiming error in the refusal of the trial court to submit to the jury certain requests to charge and in certain portions of the charge as given. The assignments of error leave much to be desired in the way of accuracy. They refer to paragraphs of the requests to charge by the numbers they have in the request for a finding, which is not printed, instead of by the numbers given them in the finding. In one instance, error is assigned in a long passage of the charge without specifying the respect in which it is claimed to be defective; see Conn.App.Proc., p. 134; and in another, a single assignment of error refers to six paragraphs of the charge, each of which deals with a separate matter. The brief of the plaintiff shows, however, that she was not misled in any way as to the claims of the defendant and we will, therefore, overlook these defects.

One of the allegations of negligence in the complaint is that the defendant was negligent in failing to provide any lifeguards or in providing an insufficient number, and the trial court submitted this claim to the jury. The lake is about two thousand feet long and seven hundred feet wide at its widest point. The plaintiff claimed to have proved that the defendant controlled it and that it was its duty to patrol or police it; and that the rowboats were not limited to any particular portion of it. At one point on the shore the defendant conducts a bathing beach and it had one or more lifeguards there whenever bathing facilities were open to the public; but it did not provide lifeguards for any other portions of the lake. It owned and operated three speedboats on the lake. The plaintiff claimed that the speedboats did not follow any regular course, but were deliberately driven in a zigzag course, sometimes crossing their own backwash, in order to give the passengers thrills and excitement; that they thereby created waves one to two feet high; that at times they were operated in close proximity to the rowboats on the lake and on several previous occasions had caused rowboats to capsize or sink; and that on the occasion of the drowning of the decedent a speedboat went within ten to twenty-five feet of the boat in which he was, causing it to be filled with water and sink. If the jury found these facts, it would be for them to determine whether or not the defendant should reasonably have anticipated danger that rowboats would be filled with water by the operation of the speedboats and whether reasonable care required that it maintain an adequate number of lifeguards to go to the rescue if the occupants of any rowboat might thereby be endangered. Nordgren v. Strong, 110 Conn. 593, 600, 149 A. 201; Skelly v. Pleasure Beach Park Corporation, 115 Conn. 92, 96, 160 A. 309.

The defendant makes the further claim, with reference to this matter, that the deceased was its licensee and not its invitee. He was in attendance at a picnic of the State Trade School at Hartford and the athletic association of the school had made an arrangement with the defendant under which all the rowboats were reserved for its students; payments for use of the rowboats were made to the association, not directly to the defendant. The basis of the defendant's claim is that the association became bailee of the boats, in effect an independent contractor, and that, as regards their use on the lake, those taking them out were merely licensees of the defendant. Whatever might be the situation with reference to the boats themselves, the mere fact that the athletic association took control of them would not make the use of the lake by the decedent one not at the defendant's invitation. Over that, the defendant in no way surrendered its control. The situation is analogous to that where a visitor to a tenant of an apartment house is injured through a defect in a common approach; and we have held that the landlord is liable, not because the visitor is there at the invitation of the tenant, but because the user is for the common interest or mutual advantage of both the landlord and the visitor. Reardon v. Shimelman, 102 Conn. 383, 386, 128 A. 705, 39 A.L.R. 287; Webel v. Yale University, 125 Conn. 515, 519, 7 A.2d 215, 123 A.L.R. 863. We have held that one who visits a bathing resort where no charge is made for admittance but the owner gets income from the sale of food, rent of bathing suits and the like is an invitee. Nordgren v. Strong, supra, 110 Conn. 602, 149 A. 201. It was certainly for the business advantage of the defendant that use should be made of the like by students taking the boats out, even though their immediate right of possession had been derived from the association and not directly from the defendant. The claim of the defendant is without foundation.

The plaintiff...