85 A. 588 | Conn. | 1912
The defendant says that the court erred in refusing to set aside the verdict. An examination of the evidence leads us to the contrary conclusion.
The jury might reasonably have found the defendant guilty of negligence. Evidence was before it upon which it reasonably might have found that the railing in question had for a considerable time been in an unfit and dangerous condition; that some six weeks prior to the accident complaint of that condition had been made to the defendant on behalf of the plaintiff's intestate; that the defendant had then promised to repair it; that thereafter nothing was done in that direction beyond possibly the driving of a nail or two; that, whatever was done, the attempted repair was negligently and improperly done and wholly inadequate; that the unfit and dangerous condition remained; that this continuing condition was readily discoverable, and would have been discovered at any time by a reasonable *420 inspection; and that the intestate received her fatal injuries as the proximate result of such condition.
The defendant cannot escape liability upon the ground that he had employed a competent carpenter to do what the conditions appeared to him to demand, if such was the case. If the carpenter was negligent, either in not making a reasonable inspection to discover the defective condition of which the defendant had been warned, or, having discovered it, in failing to make such repair as was reasonably required, or in making a carelessly inadequate one, that negligence of the servant was the negligence of the defendant, upon whom, under the conditions which, in view of the verdict, the jury must have found existed, the duty of repair rested. Wilson v. Willimantic Linen Co.,
It could not reasonably have been found that the intestate was guilty of contributory negligence. The testimony of the only eyewitness of the immediate fall, who was a sister of the defendant and a witness on his behalf, was that she sat in her window of an adjoining house which looked out upon Mrs. Koskoff's entrance only a short distance away, and that she saw the whole occurrence, which she described in the following language: "The woman came out of the house carrying a table-cloth. . . . She stopped a moment and this loud shot, cannon shot, whatever it was, and I know I remember I started from the chair I was seated in, and she started forward and fell, throwing her weight against this rail, dead weight, and then the balustrade gave way and the next I saw was the woman on the ground." This testimony, to the effect that the intestate's contact with the railing which gave way was involuntary and the result of a sudden fright, relieves her of all responsibility for her injury through a negligent *421 act, and there was no other evidence tending to show a different situation.
Several rulings upon the admission of testimony are challenged as erroneous. A number of these are of a precisely similar character, and admitted evidence to establish the time when the railing was replaced and repaired by the defendant after the accident. The circumstances attending these rulings were the following: The plaintiff had introduced an experienced builder, who testified that he visited the premises, in company with one of the plaintiff's counsel, on the morning of the day following the accident, and examined the conditions as they were then disclosed, before the railing had been replaced or repair made. The plaintiff relied upon this witness to establish that the method of construction thus laid bare was not safe or proper for ordinary use, and that the means employed for holding the rail in place indicated a failure to exercise proper care. The defendant, as a witness in his own behalf, subsequently testified that on the afternoon of the day of the accident he caused the railing, which had been carried away, to be replaced and necessary repairs made. If the testimony thus given was true, that of the plaintiff's builder could not have been. A question of veracity was thus presented, and it was one which had an important bearing upon the ultimate questions at issue. The evidence admitted bore directly upon this question of veracity. It was admitted as bearing upon that question only, and the jury were cautioned to give it no other significance. In fact it could not well have had other significance attached it to, for the reason that a replacement of the railing carried away by Mrs. Koskoff in her fall could hardly have furnished a reasonable basis for an inference of prior improper construction, and furthermore the defendant had himself already testified to the replacement. The only *422
matter in issue was the time when the conceded act was done, and upon that issue the evidence was clearly admissible. The rulings were not in violation of either the rule that evidence of subsequent repairs may not be received for the purpose of showing prior negligence, as laid down in Nalley v. Hartford Carpet Co.,
A son-in-law of Mrs. Koskoff having been called as a witness by plaintiff's counsel, he was, among the preliminary questions, asked to describe the building, its tenants, Mrs. Koskoff's tenement, and the number and ages of the members of her family. The answer to the last inquiry was objected to as irrelevant and immaterial. Having been admitted, it elicited the information that she had two sons and three daughters, aged, respectively, twenty-four, twenty, eighteen, thirteen, and ten or eleven years. The admission of this testimony is complained of (1) as countenancing an attempt to arouse the sympathies of the jury, and (2) as laying the foundation for a recovery upon the basis of the loss to the family. It is a sufficient answer to the first suggestion that it is difficult to discover what harm the answer given could have worked, since all of the children save only the eighteen year old daughter were witnesses in the case, and their existence thus came to the knowledge of the jury. As to the second, the answer is to be found in the fact that there was no claim to recover upon the basis indicated, and that the rule which the court gave to the jury for the assessment of damages was one which is not subjected to criticism.
Evidence of Mrs. Koskoff's declarations to her son-in-law respecting the repairs was admissible under the statute. General Statutes, § 705. The declarations of *423 the son-in-law to Mrs. Koskoff, which are now complained of, came in without objection or ruling.
Other rulings assigned as errors call for no discussion. They are either manifestly correct, or relate to inconsequential matters.
The appeal contains thirty-five reasons of appeal, based upon the court's failure to charge as requested, and upon portions of the charge as given. It would be profitless to discuss all of these assignments, or even the minor part of them which have seemed to defendant's counsel of sufficient merit or importance to call for consideration in their brief. The court, as we have repeatedly held, was under no duty to instruct the jury in the language of the requests. It performed its full duty if it gave instructions correct in law, adapted to the issues, and sufficient for the jury's guidance in the determination of them upon the evidence, and the ultimate facts as they might reasonably be found to be established by the evidence. Water Commissioners v.Robbins,
The passage in which the jury were told that the duty of maintaining the stairway and landing in a reasonably safe condition and repair was upon the defendant, if it should be found that they were retained by him as landlord as a common passway for all tenants of the building, forms no exception to this statement. The court had just concluded a carefully stated and correct exposition of the law governing the subject, *424
and in the passage complained of turned to make application of it in brief terms to the case in hand. Read together, the instructions were not only not erroneous, but also not easily susceptible of misconstruction or misunderstanding. It is a rule of sound reason, and one generally accepted, that the duty of maintenance and repair rests upon a landlord in respect to common passageways and approaches in or to a building occupied by several tenants, which passageways or approaches are retained under his control for the use of the several tenants as a means of access to the portions of the premises leased to them, and that the landlord is liable for injuries received by a tenant by reason of the landlord's negligence in the performance of this duty. Looney v. McLean,
One of the plaintiff's counsel in the course of his argument, speaking of the defendant, used the following language: "On the other side, this man who has amassed his money, slick, smooth, got his tenement houses together." In its charge the court called attention to this remark as improper, and cautioned the jury that it was to be disregarded, and the suggestion it contained wholly dismissed from consideration, and emphasized the fact that the richness or poverty of the defendant was not a matter to be taken into account in reaching their conclusion. The remark was one which should not have been made, but in view of the action of the court we should not feel justified in granting a new trial on account of it. State v. Laudano,
The defendant complains of the attitude of the court *425 toward his counsel during the trial, and urges that it was necessarily harmful to him. We fail to discover just cause for this complaint.
There is no error.
In this opinion the other judges concurred.
