| Conn. | Jan 28, 1927
This is an appeal by the plaintiff from a judgment in favor of the defendant in an action wherein the plaintiff sought to recover damages for an injury suffered by a fall upon a sidewalk in the defendant city. The complaint alleges that the sidewalk was defective and unsafe for public travel "by reason of the covers of the water and gas mains which are set in" it, and, in a separate paragraph, that it was "also defective and unsafe for public travel for and by reason of an accumulation of ice and snow" upon it. On the trial and before us the complaint has been treated as stating two causes of action, one because the sidewalk was itself defective and the other arising under a provision of the defendant's charter making *478
it liable for injuries suffered "where there is some structural defect in such walk which is rendered more dangerous by reason of ice and snow thereon." The second cause of action can hardly be said to be well pleaded, but we see no reason why we may not treat the action upon the same basis as did the trial court and counsel. New Haven Water Co. v. Russell,
The plaintiff complains of the failure of the trial court to instruct the jury, as requested, that if they found that the plaintiff had proven either of the two claimed causes of action he would be entitled to a verdict. This request, of course, stated a correct proposition of law, but we search the charge in vain for any instruction to this effect. The trial court does, indeed, state that the plaintiff sets up two causes of action; it discusses at length that growing out of the claimed defect in the sidewalk itself, and does make some reference to the other. But instead of specifically charging the jury that, if they found proven the condition necessary to establish either, the plaintiff would be entitled to a verdict, we find that, near the beginning of the charge, the trial court, after rehearsing the allegations of the complaint pertaining to both causes of action, instructed the jury that it was the duty of the plaintiff to prove "these material allegations"; and near the end of the portion of the charge dealing with liability, in stating the contentions of the plaintiff, it included the facts relevant to both the claimed defect in the sidewalk itself and the claim that this defect was made more dangerous by reason of an accumulation of ice and snow thereon, and instructed the jury that if they found these contentions to be sound, and also that the city was chargeable with notice and that it had failed to discharge its duty in its care of the walk, then the plaintiff was entitled *479 to a verdict. The trial court was in error in not charging the jury that, if they found proven the facts necessary to establish either of the claimed causes of action, the plaintiff would be entitled to recover.
This conclusion requires a retrial, and makes desirable a consideration of certain other claimed errors in the charge. The most important of these involves the proper meaning of that section of the defendant's charter which provides: "Whenever any person shall cause any defect in, or place, or cause to be placed, any obstruction on any of the streets of said city, such person shall be held to answer to any claim for damages which may be made against said city therefor; . . . said city shall in no case be liable for any injuries 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, p. 443, § 25. The ancient statute which, in certain cases, permits an injured party to recover damages for injuries suffered upon highways, begins: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair." General Statutes, § 1414. Repeated decisions have established as the necessary condition which alone will permit a recovery upon the ground that a road or bridge is defective, that it is not reasonably safe for public travel. Frechette v. NewHaven,
The plaintiff also complains that the trial court restricted his right to recover to a defect existing in the sidewalk by reason of the covers of water and gas mains set in the sidewalk and protruding above its surface and did not permit him to avail himself of the condition of the walk around the protrusion. The further defect of which the plaintiff offered proof consisted of the claimed fact that the sidewalk sloped abruptly from the water-box cover downward to the curb, by reason of the fact that the curb leaned out into the street and so drew the walk down. The allegations of the complaint as now drawn do not allege this defect, but as the case must be remanded for retrial, we may perhaps assume that the plaintiff will seek permission to amend his complaint to remove all doubt upon the matter. We add, however, this caution: The breadth of proof which can be permitted under complaints in cases of this nature will often be *481
affected by the requirement of the statute that notice shall be given to the municipality of the injury claimed to have been suffered with "a general description of the same, and the cause thereof." General Statutes, § 1414. The purpose of these notices is "that of furnishing the recipients such available information as is calculated to assist them in self-protection. Their sufficiency is to be tested with reference to that purpose, and in applying the test the circumstances of each case are to be considered. If, under the circumstances of a given case, the notice is sufficient for its intended purpose, it will be regarded a good notice."Delaney v. Waterbury Milldale Tramway Co.,
The trial court detailed various considerations which the jury should bear in mind in determining whether the defendant had performed its duty and among them mentioned the size of the problem confronting the defendant, the expenditures involved in dealing with it, and the physical resources which the city had at its command and could utilize. The plaintiff complains *482
that there was no evidence before the jury bearing upon these elements and the finding supports that claim. The considerations suggested are, of course, relevant and material; Carl v. New Haven,
The only remaining assignment of error requiring mention is a ruling of the trial court excluding the testimony of the plaintiff's wife as to certain statements made by him to her when he arrived at his home "less than ten minutes" after the accident. Upon the record we certainly could not say that the trial court exercised its discretion unreasonably. Perry v. Haritos,
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.