Wolfe v. Rehbein

• Decision Date: 01 July 1937
• Citation: 123 Conn. 110,193 A. 608
• Parties: WOLFE v. REHBEIN.
• Court: Connecticut Supreme Court

193 A. 608

123 Conn. 110

WOLFE v. REHBEIN.

Supreme Court of Errors of Connecticut.

July 1, 1937

Appeal from Court of Common Pleas for Judicial District of Waterbury, New Haven County; Miles F. McNiff, Judge.

Action by Emmons R. Wolfe, administrator, against Philip Rehbein to recover damages for the death of plaintiff's decedent alleged to have been caused by the negligence of the defendant. From a verdict and judgment for plaintiff for $4,500, defendant appeals.

No error.

Argued before MALTBIE., C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

William J. Larkin, Jr., of Waterbury, and William H. Tribou, of Hartford, for appellant.

Michael V. Blansfield and Harry M. Albert, both of Waterbury, for appellee.

BANKS Judge.

Plaintiff's decedent, a child two years and ten months old, received fatal injuries while playing near a pile of lumber which had been placed by the defendant near the boundary line between his property and that of the plaintiff, the child's father. It was claimed that the lumber was piled unevenly and insecurely, and that because it was so negligently piled, it fell upon plaintiff's decedent causing her death. The appeal is from the denial of the defendant's motion to set aside the verdict in favor of the plaintiff and for alleged errors in the charge of the court and its failure to charge as requested by the defendant.

The jury could reasonably have found the following facts: The defendant owned a lot adjoining the house in which the plaintiff lived. In June, 1935, he commenced to build a house upon this lot and piled lumber used in the construction of the house upon the rear of the lot parallel to the boundary line between his lot and that of the plaintiff. A portion of the lumber was upon the plaintiff's land extending 2 to 2 1/2 feet over the boundary line. During the erection of the house, defendant removed pieces of timber from this pile from time to time and there was left an opening in the pile about 12 inches in width between a pile of 2 by 8 timbers on the plaintiff's land and the pile of similar timbers on the defendant's land. The lumber was originally piled evenly and securely, but after the removal of a portion of the timbers leaving this opening, the remaining timbers were left unevenly piled and insecure and unbalanced. On October 21, 1935, plaintiff's decedent, who had been left by the nursemaid with her sister aged four in the back yard of their home, was found in the opening on the pile of lumber beneath two planks which had fallen into the opening. The planks were 2 by 8 timbers 16 to 18 feet long and weighing about 50 pounds each. In answer to special interrogatories, the jury found that part of the lumber was piled on the plaintiff's property, but that the timber which hit the child was piled on the defendant's property. The jury could also reasonably have found that the children were accustomed to play upon the defendant's lot during the construction of the house upon it, that the defendant knew that they were there every day, and told their parents that he would keep an eye on them.

The defendant contends that upon the evidence, and in view of the answers to the interrogatories, the jury must have found that the child, when struck by the timber which fell from the pile on his land, was either a trespasser or a licensee, that, as such, she took defendant's premises as she found them, assuming any danger arising from their condition, and that, though she was a child of tender years, he owed her no duty to keep his premises in safe condition for her use. It is true that, as a general proposition, the owner of property owes no duty to a licensce or trespasser, whether infant or adult, to keep it in safe condition for his use. Pastorello v. Stone, 89 Conn. 286, 289, 93 A. 529; Wilmot v. McPadden, 79 Conn. 367, 65 A. 157, 19 L.R.A.(N.S.) 1101. He is not ordinarily bound to anticipate and provide for the presence of trespassers since he may properly assume that they will not ordinarily be there. When, however, the owner knows or should know that children are likely to trespass upon a part of his land upon which he maintains a condition which is likely to be dangerous to them, he may be held liable for harm resulting to them therefrom.

The rule is stated in the Restatement of Torts, vol. 2, § 339, as follows: " A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one which the possessor knows or should know and which he realizes or should...