Vinci v. O'Neill

• Decision Date: 23 December 1925
• Citation: 103 Conn. 647,131 A. 408
• Parties: VINCI v. O'NEILL.
• Court: Connecticut Supreme Court

131 A. 408

103 Conn. 647

VINCI v. O'NEILL.

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

Personal injury action by Angelina Vinci against Susan C. O'Neill her landlord. Verdict and judgment for defendant and plaintiff appeals. Error, judgment set aside, and new trial ordered.

Louis Feinmark and Louis Rubin, both of New Haven, for appellant.

Edward B. Reiley and Frank B. O'Neill, both of Waterbury, for appellee.

MALTBIE, J.

The plaintiff, with her husband, occupied as tenants an apartment in a tenement house owned by the defendant, and the plaintiff brought this action to recover for personal injuries alleged to be due to the defendant's negligence in failing to keep a portion of the premises in repair. There were six apartments in the building, two upon each of its three floors, and the plaintiff occupied one of those upon the third floor. Her apartment, as well as the other upon that floor, opened at the rear upon a veranda which ran entirely across the building, and was connected with a similar veranda by a stairway used in common by the occupants of both the third-floor tenements. This stairway had its landing upon the third floor veranda toward the end farther from the plaintiff's apartment. It was protected, except at its landing place, by a railing which left a passageway between the stairway and the wall of the building, by which the end of the veranda nearer to the plaintiff's apartment could be reached. Attached to the corner post of the veranda at that end was a clothes reel, and the plaintiff claimed to have suffered her injuries by the giving way of this post while she was engaged in hanging clothes upon the reel, thus precipitating her to the ground.

One of the main issues in the controversy was as to the existence of any obligation resting upon the defendant to make such repairs as would have avoided the injury. The plaintiff alleged and offered evidence to prove that the stairways and verandas at the rear of the building were reserved by the defendant within her own control, and were used in common by the tenants of the building. The defendant contended and offered evidence tending to show that the portion of the veranda in the rear of plaintiff's apartment and the clothes reel attached to the post were intended for the exclusive use of the tenants of that apartment, and were included in the lease to the plaintiff and her husband. As far at the claims of the parties as to facts proven show, the plaintiff and her husband were occupying under a tenancy from month to month. The post which fell no doubt stood in such relation to the veranda that, if the lease of the plaintiff's apartment included that portion of the veranda adjacent to it, the post would also be included. Conahan v. Fisher, 233 Mass. 234, 124 N.E. 13; Lowell v. Strahan, 145 Mass. 1, 12 N.E. 401, 1 Am.St.Rep. 422; Riddle v. Littlefield, 53 N.H 503, 16 Am.Rep. 388; Hope Bros., Ltd., v Cowan, L. R. (1913) 2 Ch. Div. 312. Whether or not the part of the veranda in question was within the lease was a question of fact, to be determined in the light of the circumstances of the case, including the use made of it. Brundrett v. Rosoff, 92 Conn. 698, 701, 104 A. 67; Phelan v. Fitzpatrick, 188 Mass. 237, 74 N.E. 326, 108 Am.St.Rep. 469; Loucks v. Dolan, 211 N.Y. 237, 105 N.E. 411; Maslin v. Childs, 146 A.D. 174, 130 N.Y.S. 902.

In support of her claim that the portion of the premises where the accident occurred was not included in the lease but was intended to be left open for the common use of the tenants of the building, the plaintiff was permitted, over the defendant's objection, to question her as to repairs made by her to the floor of the veranda before the accident; the court stating that the evidence was admitted " for the sole purpose of throwing light, if any it has, on the question of whether Miss O'Neill exercised any control over the premises." The plaintiff's attorney took an exception to this limitation, apparently because he conceived that, if the evidence was admitted at all, it was in the case for all purposes, but of course he was wrong in that regard. Fair Haven & W. R. Co. v. New Haven, 77 Conn. 667, 674, 60 A. 651; State v. Campbell, 93 Conn. 3, 9, 104 A. 653; Potts v. Buckley, 97 Conn. 174, 181, 115 A. 726.

At another stage in the presentation of plaintiff's case, the defendant objected to testimony by the plaintiff's daughter as to a conversation she had had with the defendant before the accident concerning a loose board somewhere about the veranda, in the course of which the defendant promised to " take care of the veranda" as soon as the rent was paid; the witness was stopped from proceeding with her recital of the conversation, and, upon defendant's motion, the testimony she had given was stricken out. The evidence of this witness was admissible for the same purpose as was that of the defendant before referred to.

Plaintiff's counsel further sought to introduce evidence of repairs made by the defendant after the accident, both by calling her as his own witness and upon cross-examination, when she was called in her own behalf, and his questions were excluded. For the limited purpose stated by the trial court to prove that the landlord retained control of the porch and not to show its defective condition, evidence of repairs made after the accident was admissible equally with that of repairs made before. Perkins v. Rice, 187 Mass. 28, 30, 72 N.E. 323; Spooner v. Delaware, L. & W. R. Co., 115 N.Y. 22, 31, 21 N.E. 696; Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 94 P. 181, 95 P. 498, 102 P. 175, 1016; 1 Wigmore, Evidence, § 283. See Baldwin v. Norwalk, 96 Conn. 1, 8, 112 A. 660. It may be that, had full inquiry been permitted, the testimony excluded would have produced nothing of material weight; but that we cannot know, and the rulings of the court prevented the plaintiff from securing the benefit of evidence which might have been of substantial assistance to her.

In the course of the trial, the defendant produced a police officer as a witness and questioned him as to his having visited the premises some three years before the accident, but after the plaintiff and her husband had become tenants of the building and as to his having seen empty beer kegs piled upon the veranda and against the railing. To this testimony the plaintiff objected on the ground that the matters it concerned were too remote in time and were immaterial. As these matters occurred during the occupancy of the premises by the plaintiff, and served to show the use to which the veranda was being put, no error could be found in the ruling of the trial court. It further appeared in evidence that the plaintiff and her husband caused these kegs, full, to be hauled up from the ground and over the railing by a rope resting upon it, and caused them, when empty, to be piled against the railing, and finally to be raised to the top of it and thrown thence to the ground. Such conduct, if the jury found it to have occurred, the trial court in its charge characterized as an " extraordinary and unjustifiable use of the premises," and went on to state that, if it caused the weakened condition from which the injury resulted, " the rule which I have cited does not apply." Just what was intended by the word " rule," the charge does not make clear, and the jury might have understood from it that, if the conduct of the plaintiff in connection with these kegs had weakened the supports of the post so as to bring about its fall, the defendant would have been freed of liability. Such conduct would be such an unjustifiable use of the railing that the defendant, without knowledge of it, would not upon the facts claimed have been required to anticipate it, and this is so...