Wladyka. v. City of Waterbury , 98 Conn. 305 ( 1922 )

The demurrer which was overruled was to the original complaint which is not printed in the record. It was not renewed against the amended complaint and hence it, and its grounds, disappeared from the case unless such grounds later arose in the course of the trial. For this reason the assignment of error based upon the overruling of this demurrer is not before us and had no legitimate place in the appeal.Goodrich v. Stanton, 71 Conn. 418, 424, 42 A. 74;Eames v. Mayo, 93 Conn. 479, 106 A. 825. Assignments of error 10, 11 and 12, as to the rulings on evidence, cannot be considered, because the rulings are not set out in defendant's request for a finding, as required by General Statutes, § 5826; Practice Book, 1908, p. 266, § 5; Summa v. Dereskiawicz, 82 Conn. 547, 74 A. 906; Friedler v. Hekeler, 96 Conn. 29,112 A. 651; Durham v. Larom, 95 Conn. 475, 477,111 A. 832; Beckwith v. Cowles, 85 Conn. 567,83 A. 1113; and because not specifically stated, as required by General Statutes, § 5837. Avery v. Ginsburg,92 Conn. 208, 102 A. 589; Smith v. Hausdorf, 92 Conn. 579,103 A. 939; Brown v. Hart, 91 Conn. 668, 671,100 A. 1065; Doolan v. Heiser, 89 Conn. 321,94 A. 354. The defendant's assignment of error, because of the denial of its motion to set aside the verdict, merits a consideration of its several grounds. Underlying them is its claim that the cause of action set up in the amended complaint is that provided by the charter of Waterbury, 12 Special Laws (1895) p. 443, § 25, which reads as follows: ". . . Said city shall in no case be liable for any injury 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." The defendant construes this section as giving a single and inseparable cause of action, viz: one for injury occurring as a result of a structural defect in a sidewalk of the City of Waterbury which is rendered more dangerous by reason of snow or ice thereon. No cause of action can arise in Waterbury, due to ice and snow on any of its sidewalks, because of this provision of its charter. The only cause of action in which snow and ice upon a sidewalk of Waterbury can have any part in furnishing a cause of action, is that provided by this charter provision, — one in which there is a structural defect in the sidewalk, and this structural defect has been rendered more dangerous by reason of snow or ice upon the walk at this point. Under this section neither the structural defect alone, nor the snow and ice alone, can create a cause of action, but when the structural defect exists and is made more dangerous by snow and ice upon the walk, the structural defect and the snow and ice in combination may create a cause of action provided the other factors are present. The plaintiff makes no criticism of the defendant's interpretation of this provision of the charter; the trial judge charged the jury in accordance with it, and we are of the opinion that the interpretation is correct. The charter provision delimiting the existing statutory action for injury from snow and ice on a sidewalk, was no doubt passed in view of the physical situation of Waterbury, located in great part upon hillsides, and rendering it exceedingly difficult for the city authorities to keep its sidewalks free from snow and ice, and imposing upon the city an excessive burden of liability if it was to be liable for every injury happening to one free from contributory negligence, and resulting from snow and ice upon its sidewalks. It is perhaps unnecessary to say that the cause of action authorized by this charter provision does not take away the existing remedy based exclusively upon a structural defect.

Before taking up the several grounds upon which the defendant relies to support its claim that the cause of action of this complaint is that authorized by this charter provision, we should dispose of the defendant's claim that this is the only cause of action set forth in the amended complaint. The defect or defects in this walk are set up in paragraphs 4 and 5, which read as follows: "4. The said iron plate was placed in the said sidewalk at a point where the said sidewalk had a decided slant, and the said iron plate gradually sank into the sidewalk at one end so as to form a depression or hole in the said sidewalk which, in connection with the said slant, rendered the said sidewalk at and near said point unsafe and dangerous for travel. 5. On or about the said December 13, 1917, the said sidewalk was rendered more dangerous and unsafe at and about the said point by reason of an accumulation of snow and ice thereon." Taken together, these two paragraphs describe the defective sidewalk for which the city is made liable by this provision of the charter. If paragraph 5, relating to an accumulation of snow and ice, be eliminated or not proven, the structural defect described in paragraph 4, is one which, if it caused injury, would furnish a cause of action to one himself free from negligence. By itself paragraph 4 describes a defective sidewalk. We are therefore of the opinion that the amended complaint states two causes of action, one for a structural defect in a sidewalk, and one for a structural defect rendered more dangerous by snow and ice thereon, which is the cause of action authorized by this charter provision. While not specifically separating these causes of action in his charge, the trial court did submit each to the jury.

It is the latter cause of action which the defendant upon several grounds claims is not supported by the evidence. 1. No proof was offered that at the time of the accident there had been any snow or ice upon the sidewalk at this point for a longer period than about fifteen minutes. This claim is sustained by the evidence. No snow had fallen since December 9th, and no evidence was offered that this snowfall remained upon the walk at the time of the accident on the 13th, or that any snow or ice had been upon the walk for a sufficient time preceding this accident to have charged the defendant with notice of its presence. 2. Next, the defendant claims that the evidence does not show whether the plaintiff slipped upon the ice or snow upon the plate, or upon the slippery surface of the sidewalk. The allegation of the complaint is that the plaintiff stepped into or tripped upon the depression or hole, and slipped upon the iron plate. The plaintiff testified her foot went into the hole or depression made as described in the complaint, and then she slipped on the iron plate upon which there was a little snow and ice. There is nothing in the evidence which makes this so unworthy of credit that the jury might not have credited it. 3. The defendant claims that the evidence fails to show that the plaintiff gave to the defendant a legal notice of the cause of action authorized by the charter provision, and that it does not appear in the evidence that there was no intention to mislead nor that the city was not in fact misled. The notice sets up the statutory requirements, and, as to the defect, that "the sidewalk was defective by reason of a hollow at this point and was rendered more dangerous by reason of an accumulation of snow and ice thereon." This, we think, was a sufficient notice under the cause of action authorized by the charter provision, and, eliminating the reference to snow and ice, it was sufficient as to a structural defect. The city was by it put on notice whether the defect were that of this charter provision, or simply the structural defect. No cause of action to which this complaint might refer could disregard the element of a structural defect, and hence the notice of it as an independent cause of action was complete. The notice cannot be held to be "invalid or insufficient by reason of an inaccuracy" in description of the statutory requirements, "if it appear that there was no intention to mislead or that such . . . city . . . was not in fact misled thereby." General Statutes, § 1414. The evidence was before the jury that the plaintiff had the city clerk of the defendant draw the notice, and that this notice was at once presented to the board of aldermen of the defendant, and that actual knowledge of the claim was then possessed by them, and all within the statutory time; and this evidence gave to the jury abundant opportunity to find that the plaintiff, in giving the notice, had no intention to mislead, and that the city was not in fact misled by the notice. Upon the evidence the jury might well have found that the plaintiff had sustained the burden of proving the requirements of § 1414, if they found inaccuracy in describing the statutory requirements for a valid notice. For the reasons stated before under 1, the cause of action based upon the charter provision was not proven and should not have been submitted to the jury.

Though the jury may have found their verdict upon the cause of action authorized by this charter provision, the verdict could not be set aside upon this ground. A general verdict upon a complaint setting up two causes of action imports that the jury has found all the issues for the plaintiff, hence if one of these causes of action is supported by credible testimony the verdict must stand, although the other cause of action was not supported by credible testimony or authorized by law, since it cannot be known that the verdict was based upon the invalid cause of action. "In such cases the defendant may protect itself from any possible injustice, when the complaint contains two or more counts, by asking for a separate verdict upon each count, or when two or more issues are presented in one count, by asking the court to propound special interrogatories to the jury." Aaronson v. New Haven,94 Conn. 690, 697, 110 A. 872; Worth v. Dunn,98 Conn. 51, 63, 118 A. 467. There was ample evidence of the structural defect as alleged, that it had existed for a long time and that the defendant had due notice thereof under the statute, and that the injury to plaintiff occurred in consequence of this structural defect. It follows that the trial court did not err in denying the motion to set aside the verdict.

Defendant requested the court to charge, in paragraph three of its request, that the defect alleged in the complaint was not the same as that given in the notice, and therefore the plaintiff could not recover unless she showed that she had no intention to mislead the city by the notice, and that it was not in fact misled. The court erroneously left it to the jury to determine whether the defect alleged in the complaint was the same as that alleged in the notice. A conclusion of this sort, to be drawn by a comparison of two or more instruments where no extraneous finding or inference of fact is necessary in order to make the comparison, is for the court. No harm in this case was done by the submission of the issue to the jury, for the verdict discloses that they must have found the defects in these two instruments the same, and this is the conclusion which the law would have required the court to make. The defendant's attempt to distinguish between the hollow as described in the notice, and the depression or hole in the complaint, must fail, the complaint being, as was most natural, merely a more detailed description of the defect. Moreover, the court correctly charged, that if the jury found the defect in these instruments was not the same, the plaintiff could not recover unless the jury should find that there was no intention on the part of the plaintiff to mislead the city in the giving of the notice, or that the city was not in fact misled, and that the burden of proving these statutory requirements was on the plaintiff.

The sixth request to charge, that there is no proof that the city had notice that the sidewalk was defective because of snow and ice, was properly refused, since the complaint did not purport to state such a cause of action. The seventh request to charge, that there was no sufficient evidence that the city had notice, actual or constructive, of the claimed defect, nor sufficient evidence of the defect, nor of the freedom from contributory negligence of the plaintiff, was properly denied. All of these subjects were fairly submitted to the jury with appropriate instructions. The eighth request to charge, that the evidence was insufficient to establish that the plate was defective and that the plaintiff's injuries resulted from the defect described in the complaint, were fairly covered in the submission of the defect to the jury. The sixth assignment of error is not that the charge concerning the structural defect is bad, but that this cause of action is not contained in the complaint which rests upon the cause of action authorized in the charter provision to which we have referred. We have already discussed this point and held that the complaint does contain this cause of action. The seventh and eighth assignments of error concern the adequacy of the charge upon the subject of notice. The charge upon this subject accorded with the law, and has already been disposed of in our consideration of the denial of the motion to set aside the verdict.

There is no error.

In this opinion the other judges concurred.