Virelli v. Benhattie, Inc.

• Citation: 148 A.2d 760,146 Conn. 203
• Court: Supreme Court of Connecticut
• Decision Date: 17 February 1959
• Parties: Rose VIRELLI v. BENHATTIE, INC. Supreme Court of Errors of Connecticut

Page 760

148 A.2d 760

146 Conn. 203

Rose VIRELLI v. BENHATTIE, INC.

Supreme Court of Errors of Connecticut.

Feb. 17, 1959.

S. Victor Feingold, Hartford, for appellant (plaintiff).

Walter J. Sullivan, Hartford, with whom, on the brief, was Robert E. Courtney, Jr., Hartford, for appellee (defendant).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

DALY, Chief Justice.

The plaintiff alleged in her complaint that injuries received by her were caused by the negligence of the defendant and its officers, agents and employees. The jury returned a general verdict for the defendant. The plaintiff appealed from the judgment rendered thereon. The plaintiff offered evidence to prove and claimed that she had proved these facts: On June 7, 1952, the defendant was the owner of a tenement house at 16-18 Williams Street in Hartford. The building, which faced west, contained six apartments, all occupied. The plaintiff was a tenant, having had one of the apartments for about twenty years. Alney Sheldon and his wife were also tenants. The defendant retained the control of the rear yard of the premises and it was used by all the tenants. On June 7, 1952, at about 9:30 a. m., the plaintiff was in this rear yard, hereinafter referred to as the yard. Sheldon came out of the house and walked through the yard to a parking lot located east, or in the rear, of the defendant's property. The defendant did not own the parking lot. The level of it near the east boundary of the defendant's property was about two feet above the yard. Mrs. Sheldon's car was in the parking lot. Sheldon got into the car and, while driving it from the parking lot down the incline, along the north side of the yard, lost control of the car, so that it crashed into the back porch of the defendant's tenement house. As a result of the impact, part of the porch collapsed, striking the plaintiff and knocking her to the ground. She sustained multiple bodily injuries. The distance which the car traveled from the parking lot to the point of impact was thirty-six feet.

The plaintiff also claimed to have proved the following: The entire area of the defendant's property adjacent to the parking lot had been uninclosed for a long time. The defendant had not erected or maintained any barrier to prevent the movement of automobiles from the parking lot to the yard. A wooden fence along the east boundary of the defendant's property could have been built at a cost of $100. Logs were also available to the defendant and could have been used to prevent cars from entering the yard from the parking lot. The defendant provided no garages or spaces for parking cars. No private driveway leading from a public street directly to the yard was constructed. The defendant did not give any tenant express permission to park cars in the yard. Employees of the owner of the parking lot and persons who lived in the neighborhood were permitted to park their cars in the parking lot. The yard was used by the defendant's tenants and their business and social visitors as a common approach to the tenement house. It was used almost daily by all the tenants in connection with their ordinary, contemplated and customary family needs. It was used, also, by the tenants and their friends as a recreation and play area. It was customary for children of all ages to use the parking lot and the yard as a recreation area and playground. The Sheldon car and that of another tenant, Thomas Ray, had on various occasions been driven from the parking lot into the yard. At different times, they were parked all night in the yard. When the plaintiff was injured, Sheldon was eighty-two years old. He had been retired from work for a long time. He did not have a driver's license. His wife was employed and customarily left her car in the parking lot and walked to work. Frequently he had driven the car up and down the slope as a pastime. The president of the defendant had actual notice that the Ray and Sheldon cars were being driven into the yard from the parking lot, thereby making the yard unsafe for use by other tenants. He appreciated the danger involved. The defendant had a reasonable opportunity to prevent or control the conduct and activity of those who drove cars into the yard. Nevertheless, it did nothing to correct or put a stop to such activities. The defendant's negligence continued down to the time the plaintiff was injured. Its negligence was a proximate cause of the plaintiff's injuries and a substantial factor in producing them.

The defendant offered evidence to prove and claimed that it had proved facts as follows: The yard was forty-two and one-half feet wide, measured from north to south. The easterly boundary was twenty-six feet east of the rear porch. The ground was substantially level for a distance of fifteen feet to the rear of the porch and then sloped upward at a grade of 18 to 20 per cent. The yard was not designed or intended for parking automobiles. The only entrance to the parking lot was through a private driveway from Walnut Street. The Sheldon and Ray cars were occasionally parked in the parking lot. On one occasion, throughout Ray's eight-year tenancy, his car was driven into the yard. On occasion, Sheldon drove his wife's car into the yard. Once, a roofing contractor drove his truck...