Wilmot v. McPadden

• Decision Date: 06 October 1905
• Citation: Wilmot v. McPadden, 78 Conn. 276, 61 A. 1069 (Conn. 1905)
• Court: Connecticut Supreme Court
• Parties: WILMOT v. McPADDEN et al.

61 A. 1069

78 Conn. 276

WILMOT

v. McPADDEN et al.

Supreme Court of Errors of Connecticut.

Oct. 6, 1905.

Appeal from Superior Court, Fairfield County; Joel H. Reed, Judge.

Action by Kate L. Wilmot, administratrix of Alva Wilmot, deceased, against Michael McPadden, Jr., and others. From a judgment for defendants, plaintiff appeals. Reversed.

Action by an administratrix to recover damages for injuries to her intestate, alleged to have been caused by the negligence of the defendants, brought to the superior court and tried to the jury. Verdict and judgment rendered for the defendants, and appeal by the plaintiff, claiming errors in the rulings of the court upon the trial and in the charge to the jury. The complaint alleges that the three defendants were owners of a piece of land on which stood an old wood dwelling house in a ruined and dilapidated condition, having two brick chimneys, and that for several days prior to May 3, 1903, the three defendants had been tearing down said house, so that on said May 3d only a part of said building was left standing, including the foundations, the first floor, and the two brick chimneys; that on said May 3d said building was uninclosed and unguarded, and was of a character calculated to attract children, and was negligently maintained by the three defendants in a condition likely to cause injury to children who might go in and around said building; that the defendants did not maintain a watchman at said building, or give any notice of its dangerous condition; that on the afternoon of said May 3d the plaintiff's intestate, a boy about 7 1/2 years of age, was playing on the first floor of said house, which was being torn down, with other children of about his own age, and while he was so playing one of the chimneys fell, whereby he was injured, suffered much pain, and shortly afterwards died; that said injuries were caused solely by the negligence of the three defendants in maintaining said building in the condition above described, and in not maintaining a watchman or otherwise giving notice of said dangerous condition; and that the injured boy was entirely free from contributory negligence.

The defendants Heery and Whalen made a joint defense and filed a joint answer. Their answer as amended admits the existence of the wood house on the piece of land as alleged, and that prior to May 3d they had been engaged in tearing down said house, so that on May 3d only a part of the building was left standing, including the foundations, the first floor, and the two brick chimneys; denies the paragraphs alleging that the building on May 3d was left unguarded and negligently maintained by them in a dangerous condition likely to attract children and to cause injury to those who might go upon it, the facts and manner of the injuries to the plaintiff's intestate, that his injuries were due solely to the negligence of the defendants in the particulars alleged, and that the plaintiff's intestate was entirely free from contributory negligence; and also alleges (1) the plaintiff's intestate was a trespasser upon the house, (2) that if the building was in a dangerous condition it was rendered so without the defendant's knowledge by the plaintiff's intestate or other trespassers, (3) that any danger in the building was patent and obvious to any one and the plaintiff's intestate assumed all risks when he trespassed thereon, and (4) that the contributory negligence of the plaintiff's intestate and the malicious acts of his playmates and fellow trespassers was the occasion of the injury to him. The plaintiff demurred to the last four paragraphs of the answer, specifying as reasons of demurrer that it appears from the complaint, if all the allegations thereof are to be taken as true, that each of the paragraphs is either untrue in fact or insufficient in law. This demurrer was filed on the day of the trial, and overruled by the court pro forma that the trial might proceed, whereupon the plaintiff denied said four paragraphs and alleged that her decedent was of such immature years that he could not commit trespass, nor preceive the dangers existing on the premises, nor be capable of contributory negligence, and that his playmates were of such immature years that they could not be responsible for their acts. The defendants Heery and Whalen denied these allegations.

The defendant McPadden made a separate defense, through separate counsel, and filed a separate answer. His amended answer is as follows: (1) Admits that he was on May 3. 1903, the owner of the land on which the dwelling house in question stood. (2) Denies that the dwelling house was at the time of its removal old and untenantable, and in a ruined and dilapidated condition. (3) In answer to paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 of the complaint, the defendant Michael McPadden, Jr., says he has not any knowledge or information thereof sufficient to form a belief. Second defense: (1) On and prior to May 3, 1903, this defendant was the owner of certain premises in Bridgeport. The parcel of real estate is described in paragraph 1 of the complaint. (2) On or about the 1st day of May, 1903, this defendant sold to the defendants Patrick Heery and Martin Whalen for a valuable consideration a certain two-story frame building standing upon said premises, and in furtherance of the agreement hereinafter set forth surrendered to them the possession and control thereof. (3) As a part of said transaction and in consideration thereof, this defendant entered into an agreement with said Heery and said Whalen, whereby said Heery and Whalen agreed to demolish and remove said building from this defendant's lot in a safe and proper manner, and using due care and diligence in the performance thereof. (4) Said building was then in a safe condition and capable of being torn down upon said premises and removed without danger to any persons, and in its character and situation would not be a source of any danger in the process of such demolition and removal. (5) Said Heery and Whalen were masons and builders by trade, and competent and experienced in the kind of work involved in the performance of said contract, which required peculiar knowledge and experience, and this defendant used due care in selecting them to perform the same. (6) This defendant did not reserve or exercise any direction or control over said work or in the selection of the servants and agents of said Heery and Whalen, by whom said work was in fact performed, and he was only interested in the result contracted for; and said Heery and Whalen acted in the premises and in all the alleged acts and omissions set forth in the complaint in their capacity as independent contractors and not as the servants or agents of the defendant McPadden. (7) The acts and omissions complained of were not rendered necessary by the due performance of said contract, but any dangerous condition existing on said 3d day of May, 1903, and caused by the state of said building or parts of said building, or from the alleged unguarded condition, were created solely by the mode of performing and in violation of said contract by said Heery and Whalen. The plaintiff filed a motion to strike out the allegations of this answer, following the words "Second Defense," first, because all said allegations are immaterial, irrelevant, etc.; second, because all said allegations appear in other words in the original answer as filed by the defendant, and were then demurred to by the plaintiff, which demurrer was then sustained by the court, and thereby the sufficiency of the defense contained in said allegations of the amended answer was...