Warren v. City of Bridgeport

• Decision Date: 28 July 1942
• Citation: 28 A.2d 1,129 Conn. 355
• Court: Connecticut Supreme Court
• Parties: WARREN v. CITY OF BRIDGEPORT.

28 A.2d 1

129 Conn. 355

WARREN

v. CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

July 28, 1942.

[Copyrighted material omitted.]

Appeal from Superior Court, Fairfield County; McEvoy, Judge.

Action by Licia Warren against City of Bridgeport to recover damages for personal injuries alleged to have been caused by the negligence of the defendant and a nuisance created by it, brought to the Superior Court and tried to the jury. Verdict for plaintiff which the court on defendant's motion set aside and from this decision the plaintiff appeals.

No error.

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

Jacob Greenspun and Isadore L. Kotler, both of Bridgeport (Frank Habansky, of Bridgeport, on the brief), for appellant.

Walter Werner, of Bridgeport (Harry Schwartz and John V. Donnelly, both of Bridgeport, on the brief), for appellee.

DICKENSON, Judge.

In this action, tried to a jury, a passenger in a private automobile sued the defendant city for personal injuries arising out of a collision between that car and a mechanical street sweeper belonging to the city and operated by its employee. The complaint contained a first count based on negligence and a second count based on nuisance. A verdict was rendered for the plaintiff. A motion to set this verdict aside was made by the defendant on the grounds that it was against the law and the evidence and was excessive. It was granted upon these grounds and also because of errors in the charge. The plaintiff has appealed from that ruling. It assigned as error all grounds upon which the court based its ruling, but by stipulation of the parties the defendant has abandoned its claim that the verdict was excessive. The defendant has filed a bill of exceptions directed to certain rulings on evidence.

As to the plaintiff's claim that the verdict was not against the evidence, the jury could have found that the street sweeper, which weighed about five tons, was eight feet in width, seven feet high, about twelve feet long, was painted gray, was dark in appearance and had but one light visible; that the time was 1:30 a. m. and the night foggy; that the sweeper was being operated in a southerly direction in an easterly lane of a public highway where traffic moved in a northerly or opposite direction; and that it collided with the car in which the plaintiff was a passenger and which was proceeding in a northerly direction.

In support of the court's ruling setting aside the verdict because it was against the evidence, the defendant advances three reasons in its brief. These are that the jury must have drawn inferences contrary to indisputable physical facts, arrived at conclusions from evidence untrue on its face and been moved by sympathy or prejudice. From the facts above recited the jury might reasonably have found that the use of the sweeper in the circumstances produced a condition which had a natural tendency to cause danger and inflict injury, and which constituted a nuisance in fact. Bush v. City of Norwalk, 122 Conn. 426, 428, 189 A. 608; Brock-Hall Dairy Co. v. City of New Haven, 122 Conn. 321, 326, 189 A. 182; Wolfe v. Rehbein, 123 Conn. 110, 116, 193 A. 608. Nor were the physical facts so indisputable and the contradictory testimony of so conclusive and important a character as to require that the decision of fact be taken from the jury.

The claim of the defendant that there was lacking the element of continuance necessary to establish nuisance (Bush v. City of Norwalk, supra) is answered in DeMare v. Guerin, 125 Conn. 362, 365, 5 A.2d 711, where we stated that we were not disposed to hold that under no circumstance could the operation of an automobile upon the highways constitute a nuisance. And while in that case we held there was no nuisance, the decision was on the ground that the facts disclosed no continuing danger. In the instant case the presence of the sweeper for the time and under the circumstances described might reasonably have been found to have been a continuing danger. Zatkin v. Katz, 126 Conn. 445, 449, 11 A.2d 843.

Early in its charge the trial court expressly and rightly removed the count on negligence from the consideration of the jury on the ground of governmental immunity.

Before proceeding with its instructions upon the law of nuisance, the trial court instructed the jury in the common law and statutory duties of operators of motor vehicles upon public highways and stated that a mere violation of a statute or reasonable standard of conduct did not furnish a basis for recovery but that "it must appear by a fair preponderance of the evidence that the violation of the law on the part of the defendant, if there was one, materially contributed to or was a substantial factor" in causing the injuries.

The trial court was correct in instructing the jury as to the duties of operators of vehicles on public highways and in their right to assume that other operators would comply with these duties until the contrary was reasonably apparent. This was relevant to the question of contributory negligence. But the court went further and charged in substance that a violation of such duties by the defendant's employee might be...