30 A.2d 385 | Conn. | 1943
The plaintiff is an employee of Porcelain Metals, Inc., engaged, at the time of his injury, in taking measurements in and around a building being constructed as a part of the gasoline service station in Stratford owned by the named defendant, hereinafter referred to as the oil company. The City Lumber Company, hereinafter referred to as the lumber company, was engaged in delivering materials to the job by truck. The service station was operating. *587 Mechanics were working on the building. Materials of various kinds were scattered around.
The plaintiff and an employee of the oil company named Brennan were standing on a narrow walk in front of the office door. They were bending over engaged in their work. A four-foot iron bar lay on the walk near the plaintiff. It projected out from the curb over the driveway. The lumber company's truck drove into the station and stopped. The driver and helper got out and the latter moved lumber out of the doorway of the building under construction so that they could back in. The driver then got into the cab of the truck and started to back under the direction of the helper. When he had backed two or three feet the right front wheel struck the end of the bar and snapped the other end up so that it hit and broke the plaintiff's nose. The jury rendered a verdict against the oil company and the lumber company and both defendants moved to set it aside. The oil company's motion was granted. That of the lumber company was also granted unless the plaintiff filed a remittitur. This was filed and judgment was entered against the lumber company only. The latter appealed and the plaintiff also appealed because of the granting of the oil company's motion.
The lumber company claims that the truck driver had a right to assume that the oil company's premises were in a reasonably safe condition, that he was therefore not negligent in failing to see and to avoid striking the bar and that, in any event, the combination of circumstances was so unusual that he could not be found negligent. As pointed out by the plaintiff, the first statement, while true as a general proposition, fails to take account of the fact that building materials of all kinds were lying around and that construction work was going on. The assumption claimed *588
by the defendant lumber company would be offset by another, that the driver would govern his conduct in the light of dangerous conditions likely to be present under such circumstances. Riley v. Consolidated Ry. Co.,
The verdict against the oil company was not set aside on the ground that it could not have been found negligent but on the ground that there was a total failure of proof of the cause of action alleged. Fenton v. Mansfield,
As pointed out by the trial court, negligence is based on a breach of duty. If the oil company owed no duty to the plaintiff, it could not be guilty of negligence. Swentusky v. Prudential Ins. Co.,
The jury rendered a verdict of $6000. The trial court ordered a remittitur of $2350. In its memorandum, it reviewed the evidence as to damages and said, "In my judgment, a fair verdict in this case would have been $2500, and one of $3650, the limit of legitimate generosity." The lumber company does not question the right of the trial court to order a remittitur but claims that a fair appraisal of compensatory damages and not the "limit of legitimate generosity" should be the rule and the authorities support that contention. The underlying principles are fully discussed in St. Louis, Iron Mountain So. Ry. Co. v. Adams,
There is error, the judgment is set aside and a new trial is ordered unless the plaintiff within three weeks from the time he receives notice of the decision of this court shall file in the office of the clerk of the Superior Court an additional remittitur of $1150; but if such remittitur shall be filed, judgment shall thereupon, as to the residue, be entered upon the verdict against the City Lumber Company; the costs of this appeal to be taxed to the defendants in either event.
In this opinion the other judges concurred.