Wadlund v. City of Hartford
Wadlund v. City of Hartford
Opinion of the Court
The plaintiff had a verdict of $8500 for personal injuries sustained by her as the result of a fall on an icy sidewalk. The defendant has appealed from the judgment thereon, assigning error in the court’s denial of its motion to set aside the verdict and in the charge to the jury.
There was no evidence of actual notice to the defendant city of the alleged defective condition of the walk. It contends that the court erred in refusing to set aside the verdict, because the evidence did not warrant a finding of constructive notice, and because the amount of the verdict was excessive. The jury reasonably could have found the following facts: The plaintiff, who was seventy-five years of age, fell on a public sidewalk on the south side of Hebron 'Street in Hartford at about 11:20 a. m. on November 30, 1948, because of the icy and slippery condition of the walk. There was no sand or other abrasive substance upon the surface. Hebron Street is about two and a quarter miles from the center of
The only testimony as to how long the walk had been in this icy condition, the vital fact upon the issue of constructive notice, was that of the plaintiff’s daughter, Blanche Hedlund. She testified that the ice had been there “in the same condition” for “[a]bout three or four days,” that it “had . . . footprints on it” and was “rough, and thick, and bumpy,” and that the walk for its full width and length “was covered with a sheet of ice.” She also stated she was “sure” that “there had been snow on that sidewalk constantly for three or four days before the accident.” The language quoted suggests the exaggeration of a partisan and interested witness. When this testimony is tested by the undisputed facts shown by the records of the weather bureau which were laid in evidence by the plaintiff, it is manifest that its vice was something more serious than mere overstatement. This is perfectly clear as to the declaration of the witness that she was “sure” that “there had been snow on that sidewalk constantly for three or four days before the accident” happened to the plaintiff on November 30, because the weather bureau records establish unequivocally that the first snowfall of the season occurred on November 29. The bureau’s recordings of temperature and precipitation for the period
It is a sound and well-established principle of our law that “[w]hen testimony is ... in conflict with indisputable physical facts, the facts demonstrate that the testimony is either intentionally or unintentionally untrue, and leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ.” Mlynar v. A. H. Merriman & Sons, Inc., 114 Conn. 647, 650, 159 A. 658; Richard v. New York, N. H. & H. R. Co., 104 Conn. 229, 232, 132 A. 451; Jump v. Ensign-Bickford Co., 117 Conn. 110, 115, 167 A. 90; Horvath v. Tontini, 126 Conn. 462, 464, 11 A. 2d 846. We apply this principle to determine whether the indisputable physical facts established by the records of the weather bureau demonstrate that the testimony of Blanche Hedlund was untrue and so, as a matter of law, could not constitute sufficient evidence to support a finding by the jury that the city had the constructive notice essential to sustain the plaintiff’s verdict. The city could not be held liable unless the condition had existed for such a length of time that it was charged with notice thereof and had had a reasonable time thereafter to remedy the defect. Ritter v. Shelton, 105 Conn. 447, 450, 135 A. 535.
Although there was no testimony by any other witness as to What the condition of the walk was before the plaintiff fell, the question remains whether the weather bureau records, considered in connection with the testimony as to the icy condition existing when she fell, constitute circumstantial evidence sufficient to warrant a finding by the jury of constructive notice. See Gleba v. New Britain, 133 Conn. 85, 87, 48 A.2d 227. The facts shown by these records determine that the maximum possible period during which there could have been ice on the walk was from 7 a. m. on the 29th to 11:20 a. m. on the 30th, when her fall occurred, a total of about twenty-nine hours, and that during this interval the température did not rise above 32 degrees, except that between 12 noon and 4 p. m. it touched a maximum of 35 degrees. This does not mean, however, that there was evidence warranting a finding by the jury that the slippery condition which caused the plaintiff’s fall had existed for either twenty-nine hours or any substantial part thereof. In fact the positive evidence very strongly indicates the contrary.
Police officer Laban visited the locus shortly after the accident. His uncontradicted testimony was: “The sidewalk had been shoveled. There was snow on each side of the sidewalk where it was thrown from the shovel, and the ice formed on the sidewalk appeared to have come from fallen snow from the
There is no evidence to show, however, when the snow was shoveled from the walk. From aught that appears, this may have been late on the night of the 29th or even early on the morning of the 30th. On this state of the record there was no evidence upon which the jury could reasonably have found how long the defective condition that caused the plaintiff’s fall had existed. The burden rested upon her to prove this fact, for it was essential in order to charge the defendant with constructive notice. In determining whether a ease has been made out in an action of this nature, certain guiding principles are to be kept in mind. What this court stated many
'The weather bureau is located at Brainard Field in Hartford, about four miles from Hebron Street. The possible slight variations in temperature and precipitation at the two locations are not such as can materially affect our conclusion. See Lessow v. Sherry, 133 Conn. 350, 354, 51 A.2d 49. While we refused in that case to disturb the plaintiff’s ver
There is error, the judgment is set aside and a new trial is ordered.
In this opinion Jennings and Baldwin, Js., concurred.
Dissenting Opinion
(dissenting). Just one week ago we released an opinion wherein we reiterated a principle to which we have always adhered. “Nothing in our law is more elementary,” we said, “than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641. The majority opinion, it seems to me, undermines this principle.
My associates conclude that the indisputable facts, disclosed by the weather reports, establish the inaccuracy of any testimony that the walk in question had been covered with ice for three or four days. I am in accord with that conclusion. I disagree, however, with the assertion that there was no evidence of the length of time during which the walk was icy. When a witness testifies that a defective
As applied to this case, these principles would permit the jury to accept the testimony of the plaintiff’s daughter that the walk was icy and to discount to one day the length of time it had been in that condition. With such evidence, we cannot hold, as a matter of law, that the city did not have constructive notice of the icy walk for a sufficiently long time before the accident to have remedied it through the use of reasonable care.
In this opinion Inglis, J., concurred.
Reference
- Full Case Name
- Bertha Wadlund v. City of Hartford
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- 14 cases
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- Published