50 A.2d 61 | Conn. | 1946
The action was brought by the plaintiff to recover damages for injuries and the ensuing death of her intestate as a result of a fall upon a sidewalk under the control of the defendant. A first count charged the defendant with a breach of its statutory duty to keep its walk in proper repair, a second count with maintaining a nuisance. The plaintiff has appealed from a judgment for the defendant on both counts. *245
There was no allegation that a nuisance was created by the defendant. The claim was that it resulted because the defendant permitted water to flow from adjoining land upon the walk where it froze and caused a dangerous condition. The cause of the formation of the ice is so found by the trial court and this finding is not attacked by the plaintiff. From this it appears that the condition was not created by the "positive" act of the defendant and hence, if a nuisance, it was one for which the defendant was not liable. Karnasiewicz v. New Britain,
Reference to the memorandum of decision (see Duggan v. Byrolly Transportation Co.,
The main contention of the plaintiff is that General Statutes, Cum. Sup. 1939, 1399e, which provides that in any action to recover damages for negligently causing injury or death it shall be presumed that at the time of the commission of the alleged negligent act the plaintiff was in the exercise of due care, applies to actions brought against a municipality under General Statutes, 1420, which gives a right of action to one injured by failure of the municipality reasonably to care for sidewalks under its control. For reasons stated at length in Porpora v. New Haven,
The plaintiff further contends that even though the burden was upon her to prove the absence of contributory negligence on the part of her intestate the court should have found on the evidence that this was established. Her claim seems to be that the icy condition was dangerous and concealed, and might well have caused one exercising reasonable *247
care to have fallen, so the probabilities were that her intestate was proceeding normally. The court's finding that vertigo and momentary loss of consciousness are common symptoms of uremic poisoning, from which the decedent was suffering, is not attacked. We have rejected the doctrine that the inference to be drawn from the instinct of self-preservation may stand in the place of proof of due care. Mullen v. Mohican Co.,
Unless the trial court was satisfied from adequate proof that the decedent's own contributory negligence was not a proximate cause of his injury, the plaintiff was not entitled to recover. Leitkowski v. Norwich,
There is no error.
In this opinion the other judges concurred.