Woodward v. City of Waterbury

• Decision Date: 29 July 1931
• Citation: 155 A. 825,113 Conn. 457
• Court: Connecticut Supreme Court
• Parties: WOODWARD v. CITY OF WATERBURY.

155 A. 825

113 Conn. 457

WOODWARD v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

July 29, 1931

Appeal from Superior Court, New Haven County; John Richards Booth Judge.

Action by George W. Krooner against the city of Waterbury. After the death of plaintiff, Georgianna Krooner Woodward, executrix of his estate, entered to prosecute the action to recover damages for personal injuries, alleged to have been caused by a defective sidewalk, the action being brought to the superior court in New Haven County and tried to the jury. Verdict and judgment for plaintiff, and defendant appeals.

No error.

Charles S. O'Connor and Timothy S. Sullivan, both of Waterbury, for appellant.

Joseph E. Talbot and Clayton L. Klein, both of Waterbury, for appellee.

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

MALTBIE, C.J.

George W. Krooner brought an action against the defendant alleging injuries caused by his stumbling over a water box which protruded above the surface of a sidewalk; the jury brought in a verdict for the defendant, but upon appeal by the plaintiff we found error and ordered a new trial. Krooner v. Waterbury, 105 Conn. 476, 136 A. 93. Krooner thereafter died, and the plaintiff, his wife, administratrix upon his estate, entered to prosecute the action. The charter of the defendant city contains a provision: " 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." 12 Special Laws 1895, p. 443, § 25. The amended complaint upon which the action was tried alleged that the sidewalk was structurally defective, and also that this structural defect was made more dangerous by ice and snow. The plaintiff recovered a verdict for $8,000 and the defendant has appealed, claiming as grounds the refusal of the trial court to set the verdict aside, its refusal to give certain requests to charge, the giving of certain portions of the charge and rulings upon evidence.

Taking up first the refusal of the trial court to set the verdict aside, there was evidence that the water box was about one foot from the outer edge of the curb; that it protruded above the sidewalk seven-eighths of an inch on the side away from the street and one and one-half inches on the side toward the street; that the sidewalk between it and the curb sloped abruptly downward, so that the edge of the curb was four or five inches lower than the level of the sidewalk, due to the curb leaning toward the street. The notice of the injury filed with the defendant stated it to be caused by the protruding water box and the cover of a box connected with a gas main near it. The defendant claimed that the verdict was improper because founded not merely upon the protruding of the water box, but also upon the structural defect due to the sloping away of the sidewalk from it. Evidence as to the latter, condition could not well be excluded; only by placing it before the jury could they get a true picture of the situation, and it was strongly corroborative of the claim of the defendant that the water box did protrude. The trial court in its charge carefully limited the recovery to such a defective condition in the sidewalk as was caused by the protrusion of the water box, telling them that evidence as to the slope of the sidewalk was received as showing the condition of the water box and its cause, but stating that the sloping of the sidewalk could not in itself be a basis of recovery. We must assume that the jury followed this instruction. The defendant does not definitely claim that, as regards liability, the verdict lacked reasonable support on the evidence, and could not well do so; its contention largely is that the jury based its verdict upon evidence that was improperly before it, but the matters involved in this claim are discussed later in this opinion, and for the reasons there stated this attack upon the verdict is groundless.

The defendant also claims that the verdict was excessive. In its brief, it treats the action as one to recover damages under the statute for the wrongful death of the deceased. The complaint after his death was amended to allege it, but it seems to be conceded that his death was not causally traceable to his stumbling over the water box, and the complaint as amended is not adapted to recover damages for his death, but alleges that fact only as a basis of the prosecution of the action by the present plaintiff, the administratrix. The action as it was tried was merely a continuation of the action as it was brought and pending in Krooner's lifetime. The amount of the verdict must be tested solely by the elements of recovery which he could have claimed had he been living at the time of the second trial. Whether or not, from that standpoint, the verdict was excessive would depend upon the effect upon him of his pain and suffering, the nature of his injury, and the incapacity following, causally traceable to his stumbling over the water box. The extent of these elements of recovery depended to a considerable extent upon the conclusion reached by the jury upon conflicting evidence. There was uncontradicted evidence that Krooner was at the time of his injury fifty-one years old, and was and had been all his life a tailor, specifically a cutter; that at the time of the injury he was earning $35 a week, was in good health and regularly employed; that the nature of his injury was a dislocation of his shoulder, a fracture of the shoulder extending into the shoulder joint, and a serious nerve injury affecting the use of his arm and hand. The jury might also have found that the injury resulted in his virtual inability thereafter to pursue his trade, except for employment for short periods at a much decreased wage; that his general physical condition deteriorated steadily as a result of it during a period of about ten years following, that is, to the time of his death; that his hearing and speech were affected; that he suffered great mental disturbance and anxiety due to his inability to earn money by carrying on his trade, resulting in the necessity that his wife go to work, and finally in the breaking up of his home and his going to the poorhouse. The jury might also have properly considered the fact that after his injury the wages of a cutter increased very greatly, for a period almost doubling. Taking the view of the evidence favorable to the plaintiff which the jury reasonably might, we cannot say that the verdict was so excessive as to have required the trial court to set it aside, or even justified it in doing so. While the transcript of the evidence shows that the plaintiff displayed considerable emotion at times upon the witness stand, we cannot, upon the evidence, attribute this to anything other than the natural reaction of an emotional temperament to the difficult position in which she was placed, and cannot assume that the judgment of the jury was overborne by sympathy thereby aroused. Antel v. Poli, 100 Conn. 64, 69, 123 A. 272. There was no error on the part of the trial court in refusing to set the verdict aside.

The defendant filed forty-five requests to charge covering ten typewritten sheets. These dealt with practically every aspect of the case, and amounted to an effort by counsel virtually to frame the charge of the court. We have discountenanced such a practice. State v. McKee, 73 Conn. 18, 30, 46 A. 409, 49 L.R.A. 542, 84 Am.St.Rep. 124. The true purpose of such requests is to call to the attention of the trial court certain matters...