Cloughessey v. City of Waterbury

| Conn. | Feb 8, 1884

Loomis, J.

The error assigned in this case requires us to draw the line very closely, limiting the duty and consequent liability of a city to the particular form which the ice on the sidewalk causing the injury is found to have assumed.

At first the contention before the courts was strong, that duty and liability must cease where structural defects ended. This objection was soon brushed away, and the liability of towns and cities was extended to other things having no connection with the structure of the road or walk, but which might obstruct or imperil the traveler.

Then it was contended that snow and ice, coming solely at the will of ‘providence, must surely be beyond the purview of a town’s duty relative to its removal, but it was soon generally conceded by the courts everywhere that towns and cities must be held to owe some duty even in regard to ice and snow upon the public streets and sidewalks, but it was insisted that the duty must be restricted to ice found in ridges upon the sidewalk and could not be extended to smooth and level ice however slippery. And here at the outset we concede that there is a strong arra3r of authorities from different states sustaining this position, but they all follow and count upon the leading case in Massachusetts of Stanton v. Springfield, 12 Allen, 566, to which we will' again refer.

Leaving out of view for the time being as far as practicable the bias of mind produced by the fact that the courts of other jurisdictions sustain the distinction, let us inquire into the substantial reasons that it rests upon. In the first place, it is obvious that it does not depend at all upon the fact that ice in ridges is dangerous, while smooth ice is not. This of course is a question of fact, and should be found as such to make it an element of the legal proposition, but, appealing to common knowledge and experience, we think it may be assumed that no such fact could be proved to sustain the distinction, but on the contrary that it might be shown that the smooth and glare ice would be the more dangerous. And in this connection the finding in Stanton v. Springfield, (supra,) is significant. In that case there was both rough and uneven ice and also places where the ice was entirety smooth. The plaintiff passed safety over the rough and uneven ice, but, to use the language of the finding, “ fell as she stepped on the. smooth ice, which was so slippery that her feet came out from under her the moment she touched it.” It seems then that the city escaped liability because the plaintiff happened to fall where the walk was in fact most dangerous. A fall only one step further back would have made it liable. At first blush this seems a little absurd; nevertheless, if the line of responsibility was property drawn the court faithfully applied the principle, for it would be immaterial how near the plaintiff came to the line if she was realty beyond it. So we will return again to consider the reasons on which such a distinction must be based. But the fact that the- distinction ignores as a defect that form of ice which may be the most dangerous, remains an objection not easily to be overcome.

It may plausibly be suggested that the ice to constitute a defect must, while adhering to the walk, assume a form which would be a structural defect, if the walk itself was so constructed. If this is correct then mere smoothness of surface could never be a defect, and a sidewalk, though made for the express purpose of enabling travelers on foot to -pass safety thereon, might be made of glass or some material so slippery as to defeat the purpose of making it by rendering it impossible for the traveler to pass over it in safety, and yet the law could not regard the walk as defective. The very statement sufficiently exposes its absurdity, but it has been virtually repudiated in Massachusetts in the case of Cromarty v. Boston, 127 Mass., 329" court="Mass." date_filed="1879-09-02" href="https://app.midpage.ai/document/cromarty-v-city-of-boston-6419704?utm_source=webapp" opinion_id="6419704">127 Mass., 329. In this case the plaintiff offered to show that a cover made in part of glass and partly of iron formed a portion of the sidewalk, and had been so changed by wear as to be smooth and slippery, that the plaintiff stepped on it, and slipped wholly by reason of its smoothness, and fell and was hurt. The defendant contended that inasmuch as the general surface of the walk was level, and the cover was level with the rest of the walk, there was no evidence of a defect. The court, SouiiB, J., giving the opinion, say: “This position cannot be maintained. * * If a walk is constructed of material so smooth and hard that travelers shod in the ordinary way are defeated or obstructed in their attempts to pass over it by inability to get the hold upon it with their feet which is necessary to their walking forward or the want of which causes them to lose their balance and fall, such walk cannot be said as matter of law to be safe and convenient. And it in a sidewalk the chief part of which is in a proper condition for travel, a small part of the surface is constructed of material different from the remainder and so smooth and slippery that a foot traveler stepping suddenly upon it from the portion otherwise constructed, necessarily or probably slips and is likely to fall, it cannot be said as matter of law that such walk is not defective.”

But it may- be more satisfactory to examine the reasons actually given bj'- the court for its decision in the leading case of Stanton v. Springfield, (supra.) It was there held that the mere fact that a highway is slippery from ice upon, it, so that a person may be liable to slip and fall upon it while using ordinary care, if the way is properly constructed,: and there is no such accumulation of ice and snow as to constitute an obstruction, and nothing in the construction or shape of the way which occasions any special liability to the formation or accumulation of ice upon it, it is not a defect or want of repair which will authorize a jury to find that it is not safe or convenient for travelers within the. meaning of the statute. Hoar, J., in giving the reasons, said: “ If a city was made liable for this cause it would have to be extended also to country roads, and the same rule would apply to pavements or roads made slippery for horses by snow or ice or even by rain. * * It could never have been intended by the legislature to impose upon towns and cities of the commonwealth a responsibility so extensive, or that the phrase ‘safe and convenient for travelers ’ should receive such an interpretation. It would require of all towns an examination of all their roads so incessant and minute, and the application of an efficient remedy would be so laborious and expensive, that it would be manifestly unreasonable to require or expect it. The freezing mist of a single night may glare over the whole territory of a town. The formation of thin but slippery ice in our climate is an effect which may be so sudden and extensive, and which may continue or be renewed for such a length of time, that it would be extremely difficult if not impossible for towns to make adequate provision against it.”

Notwithstanding this powerful presentation of objections we think the principles heretofore accepted by this court will render the reasoning inapplicable in this state, so far as the case at bar is concerned.

It is contended that if a city is held liable, the same liability must be extended to country towns and country roads. In this state however we have made a marked distinction between cities and towns as to ice and snow. In Landolt v. City of Norwich, 37 Conn., 615" court="None" date_filed="1871-09-15" href="https://app.midpage.ai/document/landolt-v-city-of-norwich-6579224?utm_source=webapp" opinion_id="6579224">37 Conn., 615, Seymour, J., alluding to this point, says: “ The peril is not such as to warrant the great expense in a sparsely inhabited village of attempting a preventive or a remedy; hut in cities the .aggregate of peril by reason of the numbers exposed to it becomes considerable and the means of'meeting the needful expense are ample; and hence in cities the public as such properly undertake the duty of doing the best they^can to provide against the dangers to travel which winter in this climate necessarily brings. Well cleaned pavements are justly felt to be convenient and necessary.” The underlying principle is one and the same, namely, that the care to be exercised by the municipality is a reasonable one, which must take into view all the circumstances, but the result is that the standard of diligence and duty is not necessarily the same in cities as in sparsely settled towns.

Neither can we accept the reasoning that whatever a city must do relative to ice on a sidewalk it must also be required to do with reference to ice in the carriage way. We had supposed the principle obtained everywhere, that all parts of all highways need not be kept in like repair and alike smooth and free from obstructions, and that reference may always be had to the character of the way and the kind and amount of travel over it. Street v. Holyoke, 105 Mass., 85; Kingsbury v. Dedham, 13 Allen, 186. No person of ordinary prudence would think of driving his horse smooth-shod through the streets in the season when ice might reasonably be expected to be found, and a city or town may reasonably be exempted from the duty of anticipating and providing against the consequences of such imprudence.

The remaining objections are all founded on the assumption that if a city should be made responsible under any circumstances for smooth ice on its sidewalks, it must logically and of necessity be responsible under all circumstances, as well for “ the freezing mist of a single night ” which glares' its entire territory, as for a patch of ice of a few feet only in extent which had existed in the same condition for weeks. That such a conclusion is illegitimate we think might be demonstrated by reference to principles generally accepted, but it suffices to say that our courts have already decided adversely to this position.

In Congdon v. City of Norwich, 37 Conn., 419, Seymour, J., in giving the opinion of the court, says: — “ When an ice storm covers the entire surface of the earth with ice the public authorities cannot be expected to scatter sand and ashes upon all places of public travel within their limits, * * but it has become familiar law in Connecticut that some duty in regard to snow and ice devolves upon cities and towns. Accumulation of snow and ice may produce such a condition of the road as to cause it to be dangerous and defective, and in each particular case of alleged defect from such cause the question will depend upon an inquiry of fact, whether under all the circumstances of the case, the road was in a reasonably safe condition, and whether those who were bound to keep the road in repair are justly chargeable with negligence and want of reasonable care in relation to it.”

If the Massachusetts court could have accepted the distinction above mentioned it is obvious the reasoning referred to would lose all its force. The argument of the learned court may be summarized thus: — If a city is liable in respect to any smooth ice it is liable for all, and if liable for all it is a burden too heavy to be borne; there is practically no power to perform it, and where there is no power to do there is no duty to be done. We hold on the contrary that if ice is found on the sidewalks to a limited extent, in a dangerous condition, whether smooth or otherwise, and the city has ample notice of the fact and can with reasonable expenditure make the passage safe for travel, it ought to do it, and is responsible for the consequences if the duty is neglected. But if a sudden ice storm covers all the territory of a town it would be impracticable to apply the remedy, and it would be considered and treated as would an extraordinary inundation of its streets by a flood.

But it may be suggested that we overlook the logic of the Massachusetts court, which is that to make a city liable the street must be found defective, and if a small amount of ice existing for a long time is a defect so is a large amount coming however suddenly. But it should be borne in mind that the' existence of a defect in the street is but one fact among several, all of which are indispensable to impose a liability for an injury caused by such defect upon the city, The latter must be found guilty of some negligence or want of reasonable care in regard to the matter. A defect may exist and yet the city or town may not be liable for the injury occasioned by it. To determine this question all the circumstances must be considered. The decision of the case at bar must ■ be understood to refer only to the particular circumstances found by the court, namely, that the place of injury was on one of the principal business streets of the city — that the sidewalks on both sides of that street were in good condition except at the precise place of the accident, which was very dangerous by reason of glare, smooth ice-— that it had been in this same condition for a number of weeks prior to the accident and that no sand or other substance had been put upon the ice to make it more safe, as might easily have been done, but it had been permitted by the defendant during all this time to remain in the same slippery and dangerous condition — and that the plaintiff while in the exercise of ordinary care slipped and fell upon the ice and was thereby injured.

Our decision is that under such circumstances we cannot say that the court below erred in -finding the defendant'liable, and this decision we regard as in harmony with all previous decisions by this court and as logically required by the principles heretofore accepted by the court.

• In Dooley v. City of Meriden, 44 Conn., 117" court="Conn." date_filed="1876-04-15" href="https://app.midpage.ai/document/dooley-v-city-of-meriden-6580345?utm_source=webapp" opinion_id="6580345">44 Conn., 117, Foster, J., giving the opinion, after stating the facts, says: — “ However the law may be elsewhere as to the liability of cities and bproughs for injuries sustained on account of ice found on sidewalks in their respective limits, we must regard the principles recently enunciated by this court in the case of Congdon v. City of Norwich, 37 Conn., 414" court="Conn." date_filed="1870-10-15" href="https://app.midpage.ai/document/congdon-v-city-of-norwich-6579162?utm_source=webapp" opinion_id="6579162">37 Conn., 414, as establishing the law of Connecticut and decisive of this case. The law as laid down in Landolt v. City of Norwich, 37 Conn., 615" court="None" date_filed="1871-09-15" href="https://app.midpage.ai/document/landolt-v-city-of-norwich-6579224?utm_source=webapp" opinion_id="6579224">37 Conn., 615, decided by the Superior Court, is also applicable to this case."

1 After these decisions the law of this state as to a town’s responsibility for ice upon its sidewalks was generally •accepted by the courts and by the profession as settled and as different from the law of Massachusetts.

In City of Hartford v. Talcott, 48 Conn., 532, Pardee, J., giving the opinion of the court, said: — “Where ice has accumulated upon the sidewalk to a dangerous exteut it is the duty of the municipality to remove or cover it within a reasonable time after its formation.”

But the counsel for the defendant in the case at bar, looking critically into the facts in Dooley v. City of Meriden, and Congdon v. City of Norwich, discover that the ice in these cases was described as uneven, and therefore insist that the decisions are to be regarded as based on that fact, and so they would make the rule'in this state identical with that of Massachusetts. But such is not a true interpretation of those decisions. In both the cases the ice is described as of 'uneven surface but in some places smooth-and slippery, and in neither case is it found whether the plaintiff fell upon the smooth ice or the uneven ice. Upon the Massachusetts distinction it would have been indispensable to the validity of the judgments rendered in both cases for the plaintiffs that it should appear as a fact that the injury was caused by the uneven ice. This court evidently treated that distinction as ■immaterial, and-relied upon the controlling fact that the ice was slippery’ and dangerous, and had so remained for a considerable time in both cases, and that no sand, ashes or other substance had been placed on .the walk to render it less dangerous. In Dooley v. City of Meriden, it will be observed that the counsel for the plaintiff in error sought to reverse the judgment obtained in the-court below against the city, upon the authority of the. same citations from-the decisions of other states that the present defendant relies upon, but they did not prevail with the court, and in Congdon v. City of Norwich it appears that the defendant, citing the Massachusetts authorities, claimed specifically’-, both in the court below and in this court, that there was no defect in the ’highway, and that in order to make the city liable there must be such a formation of ice and snow as to make an obstacle to travel and that mere slipperiness of the ice was ■not sufficient. The court below overruled this claim, found ■the highway defective, and rendered judgment for ■ the plaintiff, and this court sustained the decision «upon the 'ground that it could not say as matter of law that the facts found'did not warrant" the conclusion to which the court came. A- critical examination of these cases we think will clearly show that this court did hot. accept the distinction that obtains in Massachusetts and other states between uneven and smooth ice, nor look upon it with favor.

Before leaving this branch of the case we may remark that the later decisions in Massachusetts evince a tendency to modify somewhat the doctrine as first announced, and mere smoothness of the ice is now recognized as an element of defect when combined with unevenness. In Hutchins v. City of Boston, 97 Mass., 272" court="Mass." date_filed="1867-10-15" href="https://app.midpage.ai/document/hutchins-v-city-of-boston-6415039?utm_source=webapp" opinion_id="6415039">97 Mass., 272, the ice had become uneven and rounded so as to present a narrow surface three or four inches higher in the centre of the walk than at the sides.The court below held that this was no evidence of a defect, but the Supreme Court gave a new trial upon the "ground that the evidence should have been submitted to the jury, with instructions that the city could be held liable only in case the jury should find that, in addition to the smooth and slippery condition of the ice, it was allowed to be in such an uneven and rounded condition on the surface that a person could not walk over it, using due care, without being in danger of falling. And in Morse v. City of Boston, 109 Mass., 446" court="Mass." date_filed="1872-03-15" href="https://app.midpage.ai/document/morse-v-city-of-boston-6416849?utm_source=webapp" opinion_id="6416849">109 Mass., 446, the plaintiff testified that it was purely the slipperiness of the ice and nothing else which made her fall, and that she did not stumble, but she also testified, as did other witnesses, that the ice was glare, hard, hubby and in ridges, uneven in form but very smooth. The court, Chapman, C. J., giving the opinion, said that the jury’ were authorized to find that the hubby surface of the ice made its mere slipperiness more dangerous, and the evidence authorized the jury to find the highway defective.

In 2 Thompson on Negligence, p. 785, the author, after summarizing the doctrine of the authorities relied upon by the defendant, says: — “ This doctrine manifestly'- should be taken with some qualification;” and in the notes on the same page he commends the reasoning of Seymour, J., in Landolt v. City of Norwich, as excellent, and also highly compliments the charge of Drummond, J., to the jury as given in Clark v. Chicago, 4 Biss., 486" court="None" date_filed="1868-03-15" href="https://app.midpage.ai/document/clark-v-chicago-9301352?utm_source=webapp" opinion_id="9301352">4 Bissell, 486, which will be found to contain a statement of principles similar to those that have obtained in this jurisdiction.

The remaining question is whether the notice of the injury as to the place where it happened was sufficiently certain.

The notice stated that the plaintiff was injured on the sidewalk “in Bank street, at a point on the west side of the street, in front of the property No. 117, occupied by Dennis Blakeslee, house-painter, grainer and paper-hanger, and owned by Bowditch & Co. of New Haven.” The alleged uncertainty arises from the fact that the court finds that the injury was received on the east side of the street. If there was nothing more certain to fix the locality than the statement that it was on the west side, while in fact it was the east side, it would doubtless be insufficient. But we have further words of precise identification of the place, namely, “ on the sidewalk in front of No. 117, occupied by Dennis Blakeslee.” Now as no question is made as to the correctness of this part of the description, we may well assume it was on the east side of the street. We have then a very perfect description and designation, of the place which is true, and a word superadded of further description inconsistent with it and which is not true, which furnishes a perfect foundation for the application of the maxim “falsa demonstratio non nocet, cum de corpore constat.” We reject the false and find a perfect description remaining.

If it should be objected that the court has not found the remaining words true» then we say that justice would demand the application of the rule that no claim can be considered in this court unless it is founded upon a like claim appearing of record to have been made in the court below. In this case the finding is that no exception whatever was taken to the notice upon the trial. Had there been objection the place of the accident with reference to No. 117 would have been found.

It may be further suggested that there is an ambiguity in the phrase “.in front of the property No. 117,” whether it means in the immediate front or across the street. If so, we should still think the rule above mentioned ought to be applied, but taking all the words in connection, “on the sidewalk,” &c., “in front of,” &c., means in the immediate front.

We advise the Superior Court that there was no error in the judgment of the District Court.

In this opinion the other judges concurred.