Wadlund v. City of Hartford

• Decision Date: 22 July 1952
• Court: Connecticut Supreme Court
• Parties: WADLUND v. CITY OF HARTFORD. Supreme Court of Errors of Connecticut

Page 10

91 A.2d 10

139 Conn. 169

WADLUND v. CITY OF HARTFORD.

Supreme Court of Errors of Connecticut.

July 22, 1952.

Arthur L. Shipman, Jr., Asst. Corp. Counsel, Hartford (Frank A. Murphy, Asst. Corp. Counsel, Hartford, and, on the brief), Samuel Gould, Corp. Counsel, Hartford, for the appellant, defendant.

A. Arthur Giddon, Hartford (Morton E. Cole and Cyril Cole, Hartford, on the brief), for the appellee, plaintiff.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

The plaintiff had a verdict of $8500 for personal injuries sustained by her as the result of a fall on an icy sidewalk. The defendant has appealed from the judgment thereon, assigning error in the court's denial of its motion to set aside the verdict and in the charge to the jury.

There was no evidence of actual notice to the defendant city of the alleged defective condition of the walk. It contends that the court erred in refusing to set aside the verdict, because the evidence did not warrant a finding of constructive notice, and because the amount of the verdict was excessive. The jury reasonably could have found the following facts: The plaintiff, who was seventy-five years of age, fell on a public sidewalk on the south side of Hebron Street in Hartford at about 11:20 a. m. on November 30, 1948, because of the icy and slippery condition of the walk. There was no sand or other abrasive substance upon the surface. Hebron Street is about two and a quarter miles from the center of the city and is in a quite thickly populated residential area. The street runs east and west and has a curb and improved sidewalk on each side. Hartford has a total of 350 miles of sidewalks and employs seven sidewalk inspectors in addition to the police, who are under a duty to observe and report defective sidewalk conditions. There were lumps of ice on the walk, and the surface was icy, very slippery and dangerous. Before her fall the plaintiff was walking carefully between the lumps.

The only testimony as to how long the walk had been in this icy condition, the vital fact upon the issue of constructive notice, was that of the plaintiff's daughter, Blanche Hedlund. She testified that the ice had been there 'in the same condition' for '[a]bout three or four days,' that it 'had . . . footprints on it' and was 'rough, and thick, and bumpy,' and that the walk for its full width and length 'was covered with a sheet of ice.' She also stated she was 'sure' that 'there had been snow on that sidewalk constantly for three or four days before the accident.' The language quoted suggests the exaggeration of a partisan and interested witness. When this testimony is tested by the undisputed facts shown by the records of the weather bureau which were laid in evidence by the plaintiff, it is manifest that its vice was something more serious than mere overstatement. This is perfectly clear as to the declaration of the witness that she was 'sure' that 'there had been snow on that sidewalk constantly for three or four days before the accident' happened to the plaintiff on November 30, because the weather bureau records establish unequivocally that the first snowfall of the season occurred on November 29. The bureau's recordings of temperature and precipitation for the period prior to November 30, which are recited below, indicate with almost equal certainty that the witness' statements that ice such as she described covered the walk during these three or four days before the plaintiff's fall were also contrary to fact. Whether acceptance by the jury of this testimony as credible evidence would be so unreasonable, and so suggestive of a verdict produced by improper influence, as to call for setting it aside under the principle of Roma v. Thames River Specialties Co., 90 Conn. 18, 20, 96 A. 169, it is unnecessary to determine, for reasons which we proceed to consider.

It is a sound and well-established principle of our law that '[w]hen testimony is * * * in conflict with indisputable physical facts, the facts demonstrate that the testimony is either intentionally or unintentionally untrue, and leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ.' Mlymar v. A. H. Merriman & Sons, Inc., 114 Conn. 647, 650, 159 A. 658, 659; Richard v. New York, N. H. & H. R. Co., 104 Conn. 229, 232, 132 A. 451; Jump v. Ensign-Bickford Co., 117 Conn. 110, 115, 167 A. 90; Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846. We apply this principle to determine whether the indisputable physical facts established by the records of the weather bureau demonstrate that the testimony of Blanche Hedlund was untrue and so, as a matter of law, could not constitute sufficient evidence to support a finding by the jury that the city had the constructive notice essential to sustain the plaintiff's verdict. The city could not be held liable unless the condition had existed for such a length of time that it was charged with notice thereof and had had a reasonable time thereafter to remedy the defect. Ritter v. Shelton, 105 Conn. 447, 450, 135 A. 535.

The weather bureau records show that the temperatures for the month of November, 1948, averaged substantially above normal and that the rainfall was unusually heavy, totaling nearly seven inches. The grades and the terrain were not such as to cause rainfall to collect and remain on the walk. In determining the probative effect of the weather bureau's recordings with relation to the formation of ice upon the walk, it is the essential coincidence of precipitation and freezing temperatures which is decisive. The daily record of temperatures and precipitation leaves no possible doubt that as of November 24, 1948, there was neither ice nor snow on the sidewalk where the plaintiff's fall occurred on November 30. For the seven consecutive days ending with November 30, the daily temperature ranges in degrees Fahrenheit were: Nov. 24, 31-50; Nov. 25, 32-52; Nov. 26, 25-52; Nov. 27, 40-59; Nov. 28, 36-48; Nov. 29, 24-40; Nov. 30, 22-38. The only precipitation during this period was .29 of an inch on the 27th and .48 of an inch on the 29th, on which day the first snowfall of the season occurred. Inasmuch as there was no precipitation between the 23d and the 27th, when there was .29 of an inch, no ice could have formed before the 27th. Since at no time on the 27th and 28th did the temperature drop below 36 degrees, no ice could have formed before 7 a. m. on the 29th, when the temperature touched 32 degrees for the first time. That morning the precipitation between 3 and 5 o'clock was .07 of an inch in the form of rain; between 5 and 6 o'clock, .08 of an inch in the form of mixed snow and rain; between 6 o'clock and 12 noon, .32 of an inch in the form of snow; and in the first hour of the afternoon, between 12 and 1 o'clock, .01 of an inch in the form of snow. This made a total of .48 of an inch on the 29th. There was no further measurable precipitation on that day, and there was none on the 30th. It therefore is clear that the indisputable physical facts conclusively determine that the testimony of Blanche Hedlund did not constitute credible evidence upon which the defendant could be charged with constructive notice.

Although there was no testimony by any other witness as to what the condition of the walk was before the plaintiff fell, the...