133 A. 586 | Conn. | 1926
The plaintiff brought her action to recover damages for injuries sustained, as she alleged, by reason of a fall upon a sidewalk in the defendant city, claiming that the sidewalk was in a defective condition because of ice and snow upon it. The original appeal is taken from the refusal of the trial court to set aside a verdict rendered in the plaintiff's favor. It is somewhat difficult to understand the testimony of the witnesses as to the place upon the sidewalk where she fell, because they so largely illustrated it by reference to exhibits, but we certainly cannot say that the jury could not reasonably find the accident to have occurred substantially at the spot she claimed. There was considerable evidence, apparently credible, that the sidewalk at that spot was slippery and not reasonably safe for passage by reason of hard packed snow and ice upon it; even the assistant city engineer of the defendant testified that, were it not for a covering of ashes which he stated was upon it when he visited the place the day after the accident, it would not have been safe, and the daughter of the owner of the adjoining premises, called by the defendant, testified that, before she had put such a covering over it on the night of the accident, it was in a dangerous condition. There was also testimony that the defective condition of the sidewalk had existed for a week or more before the accident, without sand or other protective covering having been used to remove the danger; that the street where the accident occurred was one of the principal thoroughfares of the city and one of the five streets to which attention was first given in the city's efforts to remedy defective conditions due to snow and ice; that the weather had been inclement during the days preceding the accident; and that, by reason of the dangerous condition of its streets, the city every day had had men and trucks or teams engaged in sanding its sidewalks. *531
In such a situation we could not say that the jury might not reasonably have found that the sidewalk was defective at the point where the plaintiff fell and that the condition had been such and existed for such a length of time as to justify imputing notice of its condition to the city in time for it reasonably to have remedied the defect; certainly we could not hold that the trial court was in error in its denial of the motion to set the verdict aside. Schroeder v. Hartford,
The defendant contends, however, that the weather conditions during the six days preceding the accident had been such as to preclude a reasonable conclusion of liability on its part. The accident occurred about six p.m. on February 15th, 1923. The plaintiff called as a witness the United States weather observer at New London and he testified that, on the 6th and 7th days of February, there was a snow storm in which five and one half inches of snow fell; that on the night of the 9th and 10th, two and one half inches more snow fell; on the 11th, one inch fell; on the night of the 13th, there was snow and hail with some rain, resulting in a snow fall of two and one half inches; on the night of the 13th and 14th, one inch more of snow fell; and on the night of the 14th, ceasing at nine-thirty a.m. on the 15th, one and one half inches of snow fell. The defendant contends that it could not, in view of these facts, reasonably be found that the condition which caused the plaintiff's fall had existed for any such time as to render the sidewalk defective or to impute notice to the city. When once a defective condition due to ice and snow has become established, the fact that thereafter, by reason of storms or melting, that condition varies in some slight degree, will not relieve the city of liability and will *532
not in itself preclude a finding of constructive notice to it. Parks v. Des Moines,
The defendant complains of a portion of the charge in which the trial court said: "Given a situation, to determine whether or not a person is negligent, if the conduct is that of a reasonably prudent man there is no negligence, and he cannot be charged with negligence. If he fails to use such care as a reasonably prudent man would use under all the circumstances, there is negligence. Of course, the circumstances are all important — they vary with every situation. In *533
circumstances of slight danger, a very slight degree of care would be reasonable care, while in circumstances of great or high danger a very high degree of care would be the conduct of a prudent person. The circumstances are to be taken into consideration in determining whether or not an act is negligent, and the conduct is the conduct of an ordinarily prudent man in all the circumstances." Certainly no fault can be found with this statement as an explanation of the requirements of reasonable care in a negligence action. But the defendant insists that it is incorrect and harmful as applied to an action to recover for a defective highway condition. In Gustafson v. Meriden,
The remaining reasons of appeal, in one way or another, are based upon the claimed inadequacy of the charge properly to instruct the jury as to the length of time during which the defective condition causing the injury must have existed in order to make the city liable, particularly in view of the weather conditions we have discussed. An examination of the charge discloses that the trial court repeatedly, emphatically and correctly charged the jury as to the conditions which would make the sidewalk defective and as to the necessity that the particular defect causing the injury must have existed a sufficient length of time so that the city must have had, or be charged with, notice of it, and that it specifically called attention to the defendant's claim as to the snowfalls preceding the accident in their relation to those issues. Had the defendant desired more particular instructions in the respects that it now claims, it should have filed with the trial court requests to charge. Vinci v. O'Neill,
There is no error.
In this opinion the other judges concurred.