119 A. 214 | Conn. | 1922
The plaintiff, by the defendant's invitation, *300
was lawfully in the toilet-room provided by him for the use of the patrons of his theater, and while she was there the defendant owed her the duty to use reasonable care to have and to keep the premises reasonably safe in every particular. Turgeon v. ConnecticutCo.,
But if we admit that she did not have such knowledge in fact, it remained to determine, further, whether she would have had it if she had exercised reasonable care; for it is a familiar principle of law that a person is conclusively presumed to know what he would have known if he had made ordinary use of his senses. Full and adequate means of knowledge which are or have been available are, under ordinary circumstances, the equivalent of knowledge. Clark v. Post,
We think the plaintiff's means of knowledge were full and adequate. She testified that she had been in the toilet-room once or twice during the two or three months before her accident, had used one of the closets, had seen and used the washbasin, had seen the towel-rack, but had not taken particular notice of the other objects in the room, although there was nothing to prevent her from seeing any of them; that on the day *302 of the accident, when she entered the room, there was no obstruction to her view anywhere; that she went to a closet farther from the door than the weighing-scales were, and which she could approach only by passing them, came out of the closet and went close by the scales to the washbowl which was within three feet of them, and stood there to wash and dry her hands; that she then stepped sideways to the towel-rack on her right, which was within six inches of the scales, and stood there putting on her gloves. During this time her back was turned toward the closets, so that she was looking toward these objects nearby on the wall. She further testified that her next movement was turning again to her right, "around directly facing the door to go out," or to allow her sister to pass by her to the washbowl. This movement placed her facing the scales and still about six inches from them; and she said that, when she thus turned, there was nothing to prevent her from seeing the scales. Then, she testified, she "started to go ahead," "walked straight along," and struck her foot against the base of the scales and fell over them upon the floor.
The plaintiff's sister, who was the only other person in the toilet-room, testified that she saw the plaintiff standing nearer to the scales than to the washbowl and towel-rack, putting on her gloves and facing the wall on which these objects were located; and that she then spoke to the plaintiff, who turned around to face her, "apparently made a step or two forward," and fell.
The weighing-machine was a large object, its upright frame standing out from the wall of the room and extending upward from the floor five or six feet, and its base filling a space on the floor seventeen inches wide and twenty-five inches long, and nearly eight inches high. In its position it was in plain sight of any person *303 standing or moving from place to place in the room. When the doors of the closets were shut, there was sufficient space in which to pass by this machine safely; and when any of the doors was open to its full extent, it would be an obstacle merely temporary and easily removable. Or a person in haste or unwilling to take the slight trouble of pushing the door aside, might pass the scales by stepping upon its base with no considerable inconvenience and in perfect safety. It is difficult to understand how it could be found that the position of this machine, in these surroundings and in this situation, was dangerous to any person using ordinary care. It is true that the court permitted the jury to view the premises; but it does not appear that their inspection put them in possession of any material information not contained in the evidence printed in the record.
We cannot escape the conclusion, however, that if the plaintiff did not in fact know of the condition in the room occasioned by the position of this machine, she would have known of it if she had used her senses in a reasonable way, and that her accident was due to her own inattention and carelessness as to her surroundings. It seems that there was only one person besides the plaintiff in the room at the time of the accident, and no hindrance nor occasion for hurry or excitement, nor anything to divert her attention from her surroundings and her way. To determine whether she was negligent, she must be held to have been required to act upon what she should have known as well as upon what she knew. Snow v. Coe BrassMfg. Co.,
This plaintiff was obliged to take up and carry the burden of proving not only the alleged negligence of the defendant, but also her own due care, either by direct evidence or by proving "facts and circumstances" which "fairly and reasonably support and justify the inference of negligence on the one hand and of due care on the other; for a jury is never at liberty to guess or surmise the existence of either." Fay v.Hartford Springfield Street Ry. Co.,
The conclusion we have reached renders it unnecessary to consider the assignments of error relating to the exclusion of evidence which the defendant offered to prove, that a witness employed by him had never known of another accident in the toilet-room during the preceding year of his employment.
There is error and a new trial is ordered.
In this opinion the other judges concurred.