Ruocco v. United Advertising Corporation , 98 Conn. 241 ( 1922 )

The demurrer to the substituted complaint admits, of course, its allegations of fact; that the doorway in question opened on the sidewalk; that although the sidewalk extended somewhat beyond the highway line there was nothing to indicate the location of the dividing line between the highway and the defendant's property; that the public was accustomed to walk in the space immediately adjacent to the door; that the chain was in such a position that when the door was opened it could readily be touched by one on the sidewalk and either actually or apparently within the highway lines; that the door was customarily left open; that travelers in the proper use of the highway were apt at any time to so conduct themselves as to come in contact with the chain; that the decedent came in contact with the chain in the course of his lawful use of the highway, and that the chain became and remained charged with a dangerous current of electricity because of the failure of both defendants to properly install the wiring and other electric apparatus in the garage and to keep it in proper shape. There is also an allegation that the fact that the chain was charged with a dangerous current of electricity "was well known to both defendants, or had they used due care would have been known to them." This is not a well-pleaded allegation of actual knowledge of that fact prior to the accident. In O'Keefe v. National Folding Box Paper Co., 66 Conn. 38,45, 33 A. 587, where a complaint containing a similar allegation was held insufficient on demurrer, we said: "The plaintiff alleges that the defendant knew, or ought to have known, the effect that steaming colored paper in a hot box would or might have on the health of those who conducted the process. This (construed as it must be most strongly against the pleader) amounts simply to a charge that the defendant ought to have known the effect that the work might have on those engaged in it." See, also, Bryant on Code Pleading (2d Ed.) p. 34. It is, however, a good averment that the dangerous condition of the chain was discoverable by the exercise of due care, and thus the real issue is narrowed down to the question whether upon the allegations of the complaint the defendant the United Advertising Corporation owed to the plaintiff's decedent any legal obligation to use care in maintaining its premises in a reasonably safe condition.

The general rule that the owner of property owes no duty to trespassers to keep his premises in a safe condition for their use is well recognized in this State. Wilmot v. McPadden, 79 Conn. 367, 375, 65 A. 157;Pastorello v. Stone, 89 Conn. 286, 289, 93 A. 529. It is true that upon the allegations of the substituted complaint the intestate was as to some part of his person upon the property of the defendant at the time of the accident; but his right of action was not necessarily defeated thereby, for it is alleged that at the time of the injury he was in the lawful use of the highway, and from that standpoint the question is whether the defendant was under any obligation to maintain its premises in such a condition as not to endanger travelers in their lawful use of the highway.

There is no doubt as to our law on that point. InNorwich v. Breed, 30 Conn. 535, the defendant made and left unguarded an excavation wholly on his own land near the line of the highway, and a traveler fell into it at night and was injured. The traveler recovered judgment from the City of Norwich as for a defective highway. Then the City of Norwich sued the owner of the land on the theory that he was primarily liable, and we so held, saying, on pages 544, 545: "And as the dangerous character rather than the exact location of the excavation determined the duty and consequent liability of the city in regard to it, so the duties and liabilities of the defendant in this respect must be determined by the same criterion. His right to make the excavation was undeniable, and was not denied; but he was bound to exercise that right with a due regard to the co-existing rights of the city and of travelers on the street. . . . The defendant's liability did not arise from the act of making the excavation, for that he had a right to make. Nor could it depend entirely upon the distance between the excavation and the street, for he had an abstract right to make it anywhere within the limits of his close; but a due regard for the safety of travelers on the street required that, until the city could furnish such protection as the defendant's acts thus rendered necessary, he should himself discharge that duty. But he neglected it. He left the excavation altogether unguarded and unadvertised, in a condition dangerous to passengers on the adjoining street, and hence his just responsibility for the consequences of that neglect."

In Crogan v. Schiele, 23 Conn. 186, 1 A. 899, 5 id. 673, the rule in Norwich v. Breed was applied in favor of the plaintiff, who fell into an unguarded area maintained by the defendant "so near the public footway of said highway as to make the same unsafe and dangerous." In that case as in this, the complaint was demurred to on the theory that the plaintiff was a trespasser, and upon a hearing in damages after demurrer overruled, the trial court awarded nominal damages only on that theory. The first of two counts in the complaint alleged that the plaintiff was passing along the public footway and while in the exercise of due care "passed from said highway and slipped and fell into the said area or pit." The second count alleged that the defendant maintained a brick pavement between the public footway and the area in all respects like the public pavement and separated in no manner therefrom, and that the plaintiff, while in the exercise of due care, passed from the public way "over and upon the said brick pavement of the defendant" and slipped and fell into the area. The area was seven feet from the highway line. We applied the rule laid down in Norwich v. Breed, that the test of liability for maintaining an unguarded excavation near the highway depended, not on its distance from the highway, but upon the question whether, being unguarded, it endangered travel, and held that the plaintiff was entitled to compensatory damages. These cases were cited and approved in Smith v. Milford, 89 Conn. 24,92 A. 675, where the municipality was held liable to a traveler who fell into an excavation several feet from the highway.

These cases establish beyond question the rule that an owner of property abutting on a highway rests under an obligation to use reasonable care to keep his premises in such condition as not to endanger travelers in their lawful use of the highway; and that if he fails to do so, and thereby renders the highway unsafe for travel, he makes himself liable although the consequent injury is received upon his own land and not on the highway.

Irrespective of authority, the rule is one of public necessity. The maintenance on private property of a dangerous menace to public travel is, as was observed in Norwich v. Breed, a nuisance; and when the danger is of such a character as ought to awaken in a prudent owner a reasonable foresight of harm to travelers on the highway, the duty to take care is undeniable.

The alleged breach of duty in this case is two-fold; that the defendant failed to use reasonable care in preventing this chain from becoming charged with a current of electricity dangerous to travelers in the highway, and that it failed to use reasonable care in discovering the fact that the chain was so charged and in taking steps to prevent travelers from coming in contact with it.

Error and cause remanded with directions to set aside the judgment, and overrule the demurrer to the complaint.

In this opinion the other judges concurred, except WEBB, J., who dissented.