Lucy v. City of Norwich ( 1919 )

The numerous reasons of appeal may be condensed and stated under four heads, to wit: (1) that the court erred in holding the defendant liable for negligence in the creation or maintenance of structural defects in and about the sidewalk where Mrs. Lucy fell, whereas the complaint charged no such negligence; (2) that it erred in finding that Mrs. Lucy was not guilty of contributory negligence; (3) that it erred in holding the defendant to a stricter rule of responsibility for conditions created by snow and ice upon sidewalks than does the law; and (4) that it erred in finding certain subordinate facts, and in failing to find others as requested.

It is true that the court below, in its memorandum of decision, took occasion to observe, among other things, that the city was and had been negligent in creating or permitting certain structural conditions in and about the walk conducive to the formation of bodies of ice upon it at the point of injury, and that in the finding of facts incidental reference is made to the same subject. But that is not the negligence upon which the judgment was predicated. The ultimate conclusion of the court furnishing the basis of its judgment, contained in the concluding paragraph of its finding, makes this clear. That paragraph (27) reads as follows: "The fall of Mrs. Lucy was the proximate result of the negligence of the city in failing to remove or remedy the defective condition through the accumulation of ice and snow on the sidewalk in front of 248 Main Street, as required by law, within a reasonable time after the snow storm of December 15th, 1916, and after the same had existed in said defective condition for a sufficient length of time to impute knowledge and notice of the defect to the city of Norwich."

The complaint that the court held the defendant up to too high a standard of duty is not well founded. Its appeal to the familiar statement in Congdon v. Norwich,37 Conn. 414, 419, that in our rigorous climate the duty of cities and towns in respect to snow and ice is and must be very limited, does not suffice to permit it to escape liability in the present case. The finding of the court as to the condition of the walk for several days prior to the accident, and the absence of all efforts during that time to render it safe for public travel save for the partial removal of fallen snow, cannot reasonably be said to fill out the full measure of a city's duty in the care of a sidewalk located, as this was, at its business center and in the ordinary course traveled by a large number of persons. Certainly the court in so holding did not disregard any rule of municipal duty which has received the sanction of this court.

The defendant's contention that the court was in error in holding that Mrs. Lucy did not by her own negligence contribute to her injuries, finds no support under the finding, save upon the broad proposition that no one who is aware of the icy condition of a sidewalk can, in the exercise of ordinary prudence, proceed over it however great the care exercised in so doing. There is no such drastic rule of law. Wood v. Danbury,72 Conn. 69, 73, 43 A. 554; Clark v. Torrington, 79 Conn. 42,45, 63 A. 657. Mrs. Lucy had gone from her home to do family shopping downtown. In so going she had observed the icy condition of the walk. Her errands done she wished to return. As she approached the place where she fell she saw the ice which covered the whole width of the walk. The street at this point was likewise filled with ice and slush. She kept to the walk, proceeding with the greatest care, and while trying to avoid what appeared to be a particularly dangerous spot she stepped upon another covered with snow and slipped and fell. No element of negligence here appears, or is elsewhere in the case indicated, unless it were negligent for her not to stay at home and forego her shopping, or else to seek some safe haven of refuge downtown after she had arrived there.

The facts claimed to have been found without evidence, or not found although proven, concern matters which possess no importance as related to the questions herein considered, save only those contained in the paragraphs of the finding which recite Mrs. Lucy's conduct and care in passing over the spot where she fell. That recital conforms in all essential particulars to the testimony upon that point given at the trial.

There is no error.

In this opinion the other judges concurred.