Burgess v. Town of Plainville

Wheeler, C. J. A driveway ran from private property and crossed the sidewalk on the south side of East Main Street in Plainville. The surface of the driveway was gravelly, packed down hard, about nine *70 feet wide, not level, and having its middle lower than its east and west edges. The sidewalk was of cement and about five feet wide. The sidewalk to the east of the driveway terminated abruptly and formed a step down on to the driveway, its height varying, but being about two and three quarters inches. The sidewalk on the west terminated in a rough step upward from the surface of the driveway, being in height about five and three eighths inches at the south side of the sidewalk and four and one eighth inches at the point of the accident. In the middle of the sidewalk where it terminated at the driveway was a broken and irregular hole about 'ten inches in width crossways of the walk, and about four inches deep at the deepest point and extending into the sidewalk about four inches at the maximum. The surface of the break sloped upward from the level of the driveway until it came at its center point to within about an inch of the surfacé of the concrete walk whence there was an abrupt rise to that surface. This break in the edge of the sidewalk had existed for a considerable time, but just how long is not known. Neither the officials of the town, nor adjoining landowners or their tenants, had actual knowledge of this break, nor was its size and nature such as to put the officials of the town upon notice of its existence. The plaintiff had been familiar with this sidewalk for upward of two years and knew of the step down at. the easterly side of the driveway and of the step up at the westerly side, but she had never seen the said break. As the plaintiff attempted, on September 7th, 1922, to pass from the driveway to the sidewalk on its west side, she stumbled by reason of her foot getting into the depression formed by the break and fell and fractured her left wrist.- The trial court concluded (a) that the conditions presented by this driveway and the termination of the sidewalk at its westerly edge *71 constituted a defect in the sidewalk which rendered it not reasonably safe for travelers upon it; (b) that had the officials of the town used reasonable care to render the sidewalk at this point reasonably safe for travelers, the danger to them due to the break would have been removed; (c) that the plaintiff was not guilty of contributory negligence in proceeding across the driveway as she did, nor in failing to see the break, nor in the way in which she stepped up to the level of the sidewalk. On November 30th, 1922, while plaintiff was in her daughter’s house, a small dog, tied with a cord, drew the cord across the plaintiff’s ankles and caused her to fall, when her left wrist was refractured along the lines of the fracture of September 7th. The fracture of November 30th would not have occurred had it not been for the fracture of September 7th. The court reached the following conclusions: “that the conditions created by the driveway and the abrupt termination of the sidewalk at its westerly edge constituted a defect in the highway which the officials of the town were under an obligation to use reasonable means to make reasonably safe; and the break in the edge of the sidewalk was an incident of that defect; that the fall of the plaintiff was the result of the existence of that defect; that the plaintiff was not guilty of contributory negligence; that as the second fracture the plaintiff suffered would not have occurred had it not been for the one caused by the fall, it was a proximate result of the fall and so the defendant is liable for any suffering, incapacity and expense due to it as well as for those which followed the first fracture. The subordinate facts disclose that the cause of the plaintiff’s fall was the break in the walk and not the step up from the driveway. The conclusion of the court that the conditions created by the driveway and the abrupt termination of the sidewalk at its westerly edge *72 constituted a defect and the break in the edge of the sidewalk was an incident of that defect, would not support the plaintiff’s cause of action. Her fall was due to her foot catching in the hole, as the subordinate facts show. This break in the walk at this point was a defect in the walk and rendered it unsafe for travelers using the walk at this point and traveling with reasonable care. Since the officials of the town had no actual notice of this defect, the town could only be liable for injury resulting from the defect if it had existed for so long a time that the town, ip the exercise of reasonable care, ought to, have had knowledge of it. Dean v. Sharon, 72 Conn. 667, 672, 46 Atl. 963. The finding states that the break had existed for, a considerable time, but just how long is not known. Exception was taken to this finding. The evidence annexed as appears in exhibit B does not support this finding. The finding is too indefinite to permit us to determine whether the break had existed long enough to have charged the defendant with its knowledge or not. A “considerable time” may vary with the individual judgment. In a case of this character, tried to the court, where the question of constructive notice arises, the finding should state within some measurable bounds the time the defect had continued. The finding made makes this question unimportant. It says that the size and nature of the break was not-such as to put the officials of the town upon notice of its existence. This is a direct finding that even though the break had existed for a considerable time, it was not of such size and nature as to have charged the officials of the town with knowledge of its existence. So long as this finding stands, the defendant town cannot be held to have had constructive notice of the defect, and, without that, the town could not in any event be held responsible for an injury resulting because of the defect. It follows *73 that judgment upon the facts found should have been rendered in favor of the defendant. We have noted the somewhat inconsistent finding in paragraph seventeen, that had the officials of the town used reasonable care to render the pathway at this point reasonably safe, the danger to travelers due to the break would have been removed. Since the officials had no notice whatever of this break, they were under no duty to remove the danger due to the break. This conclusion makes unnecessary the decision of the other grounds of appeal. There is error, the judgment is reversed' and the Superior Court directed to render judgment for the defendant. In this opinion the other judges concurred.