Wladyka v. City of Waterbury

• Decision Date: 11 December 1922
• Citation: 119 A. 149,98 Conn. 305
• Court: Connecticut Supreme Court
• Parties: WLADYKA v. CITY OF WATERBURY.

119 A. 149

98 Conn. 305

WLADYKA v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

December 11, 1922

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Action by Bertha Wladyka against the City of Waterbury. Judgment for plaintiff, and defendant appeals. No error.

At about 7:15 o'clock on the evening of December 13, 1917 the plaintiff sustained injuries to her person by falling upon a sidewalk upon East Main street in Waterbury. The plaintiff claimed to have proved that her fall was caused by the sinking of an iron plate placed in the sidewalk at one end as to form a depression or hole in the sidewalk, which in connection with the slant of the sidewalk at this point rendered it at and near this point unsafe and dangerous for travel; that her fall was further caused by the sidewalk being rendered more dangerous and unsafe at this point by reason of an accumulation of snow and ice thereon; that this condition in the sidewalk had existed for a long time prior to December 13, 1917, and was known to the defendant, or that it ought to have been known to it, and that on December 15 1917, she caused to be given the defendant a notice in terms as follows:

" To the City of Waterbury and to W. F. Moher, City Clerk: This is to give you notice I will claim damages for injuries sustained by my wife, Bertha Wladyka, by reason of falling on a slippery sidewalk on East Main street in front of the store of Augustus Reutter close to the driveway leading into the rear of the Moriarty property, on the 13th day of December, 1917, at 7:15 p. m. The sidewalk was defective by reason of a hollow at this point and was rendered more dangerous by reason of an accumulation of snow and ice thereon. Her injuries consisted of a compound fracture of the leg near the ankle, and otherwise bruised, necessitating her removal to St. Mary's Hospital. Dated at Waterbury this 15th day of December, 1917. Bertha Wladyka, by John Wladyka, Husband."

This notice was written by the city clerk of Waterbury as an accommodation to the plaintiff, who then was unrepresented by an attorney. It was presented to the board of aldermen of Waterbury on December 17, 1917, and they had actual cognizance of the claim therein described, and thereupon it was referred by the board to its committee on law. The city clerk was the duly authorized representative of this city to whom by its charter such a notice of intention to claim damages must be given. The defendant appealed for claimed errors in denying the defendant's motion to set aside the verdict, in overruling the demurrer to the original complaint, in three rulings on evidence, and in refusing to charge as requested in five particulars, and in the charge as made in three particulars.

Ulyses G. Church and Philip N. Bernstein, both of Waterbury, for appellant.

Frank P. McEvoy and Edward J. Finn, both of Waterbury, for appellee.

WHEELER, C.J.

The demurrer which was overruled was to the original complaint, which is not printed in the record. It was not renewed against the amended complaint, and hence it and its grounds disappeared from the case unless such grounds later arose in the course of the trial. For this reason the assignment of error based upon the overruling of this demurrer is not before us and had no legitimate place in the appeal. Goodrich v. Stanton, 71 Conn. 424, 42 A. 74; Eames v. Mayo, 93 Conn. 479, 106 A. 825. Assignments of error 10, 11, and 12 as to the rulings on evidence cannot be considered because not set out in defendant's request for a finding as required by G. S. § 5826 (Practice Book 1908, p. 266; Summa v. Dereskiawicz, 82 Conn. 547, 74 A. 906; Friedler v. Hekler, 96 Conn. 29, 112 A. 651; Durham v. Larom, 95 Conn. 475, 477, 111 A. 832; Beckwith v. Cowles, 85 Conn. 567, 83 A. 1113), and because not specifically stated as required by G. S. § 5837 (Avery v. Ginsburg, 92 Conn. 208, 102 A. 589; Smith v. Hausdorf, 92 Conn. 579, 103 A. 939; Brown v. Hart, 91 Conn. 668, 671, 100 A. 1065; Doolan v. Heiser, 89 Conn. 321, 94 A. 354). The defendant's assignment of error because of the denial of its motion to set aside the verdict merits a consideration of its several grounds. Underlying them is its claim that the cause of action set up in the amended complaint is that provided by the charter of Waterbury (12 Special Laws of 1895, p. 443, § 25), which reads as follows:

" Said city shall in no case be liable for any injury occasioned by ice or snow upon the sidewalks of said city, except in cases where there is some structural defect in such walk which is rendered more dangerous by reason of ice or snow thereon."

The defendant construes this section as giving a single and inseparable cause of action, viz. one for injury occurring as a result of a structural defect in a sidewalk of the city of Waterbury which is rendered more dangerous by reason of snow or ice thereon. No cause of action can arise in Waterbury due to ice and snow on any of its sidewalks because of this provision of its charter. The only cause of action in which snow and ice upon a sidewalk of Waterbury can have any part in furnishing a cause of action is that provided by this charter provision in which there is a structural defect in the sidewalk, and this structural defect has been rendered more dangerous by reason of snow or ice upon the walk at this point. Under this section neither the structural defect alone nor the snow and ice alone can create a cause of action, but, when the structural defect exists and is made more dangerous by snow and ice upon the walk, the structural defect and the snow and ice in combination may create a cause of action provided the other factors are present. The plaintiff makes no criticism of the defendant's interpretation of this provision of the charter. The trial judge charged the jury in accordance with it, and we are of the opinion that the interpretation is correct. The charter provision delimiting the existing statutory action for injury from snow and ice on a sidewalk was no doubt passed in view of the physical situation of Waterbury, located in great part upon hillsides, and rendering it exceedingly difficult for the city authorities to keep its sidewalks free from snow and ice, and imposing upon the city an excessive burden of liability if it was to be liable for every injury happening to one free from contributory negligence and resulting from snow and ice upon its sidewalks. It is perhaps unnecessary to say that the cause of action authorized by this charter provision does not take away the existing remedy based exclusively upon a structural defect. Before taking up the several grounds upon which the defendant relies to support its claim that the cause of action of this complaint is that authorized by this charter provision, we should dispose of the defendant's claim that this is the only cause of action set forth in the amended complaint. The defect or defects in this walk are set up in paragraphs 4 and 5, which read as follows:

" (4) The said iron plate was placed in the said sidewalk at a point where the said sidewalk had a decided slant, and the said iron plate gradually sank into the sidewalk at one end so as to form a depression or hole in the said sidewalk which, in connection with the said slant, rendered the said sidewalk at and near said point unsafe and dangerous for travel. (5) On or about the said December 13, 1917, the said sidewalk was

...