Seabridge v. Poli , 98 Conn. 297 ( 1922 )


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  • The plaintiff, by the defendant's invitation, *Page 300 was lawfully in the toilet-room provided by him for the use of the patrons of his theater, and while she was there the defendant owed her the duty to use reasonable care to have and to keep the premises reasonably safe in every particular. Turgeon v. ConnecticutCo., 84 Conn. 538, 541, 80 A. 714; Godfrey v.Connecticut Co., 98 Conn. 63, 118 A. 446. In her complaint the plaintiff alleged that the defendant failed to perform this duty to her because he negligently permitted a weighing-machine to stand in the toilet-room in such a position that it was dangerous to persons entering or leaving the room who were not aware of its position. It is not set forth, and it was not claimed, that the position of the machine was dangerous to persons who knew of its location. On the contrary, she asserts that she tripped over the scales while she was leaving the room and passing the scales "without knowing of the dangerous and unsafe condition." Moreover, it is manifest from the evidence produced, that it could not reasonably be found that the position of the machine was dangerous to any person who knew where it stood and the consequent conditions in the room. Therefore the verdict for the plaintiff can be sustained only upon a conclusion from the evidence that the plaintiff did not in fact know particularly of the condition caused by the position of the weighing-machine which the defendant permitted to stand in the room, and also that she would not have known of it if she had used her own senses with ordinary care. In the first place, if she did know of these circumstances, she had failed to prove an allegation in her complaint which was essential to her claim for redress. Upon this subject, the plaintiff testified that she had never before noticed the weighing-machine. Whatever doubts other parts of her testimony and the other evidence may raise concerning the accuracy of her statement, *Page 301 it was the right of the jury to give it full credit in deciding this particular question, and we would not assume to interfere with their decision.

    But if we admit that she did not have such knowledge in fact, it remained to determine, further, whether she would have had it if she had exercised reasonable care; for it is a familiar principle of law that a person is conclusively presumed to know what he would have known if he had made ordinary use of his senses. Full and adequate means of knowledge which are or have been available are, under ordinary circumstances, the equivalent of knowledge. Clark v. Post, 35 Conn. 339, 342. The plaintiff's right to recover depended upon the character not only of the conduct of the defendant but of her own. It was essential that her conduct, as she alleged in her complaint, must have been "free from contributory negligence"; that is, that she acted with the care required by law. "We have frequently held that the character of one's conduct in respect to care is to be determined in view of what he should have known as well as of what he did in fact know." Nehring v. Connecticut Co., 86 Conn. 109, 123, 84 A. 301,524. It was the plaintiff's duty to be watchful of her surroundings and of the way in which she was going, and to exercise ordinary care both to avoid dangers known to her and to discover dangers or conditions of danger to which she might become exposed. Radwick v. Goldstein, 90 Conn. 701, 710, 98 A. 583.

    We think the plaintiff's means of knowledge were full and adequate. She testified that she had been in the toilet-room once or twice during the two or three months before her accident, had used one of the closets, had seen and used the washbasin, had seen the towel-rack, but had not taken particular notice of the other objects in the room, although there was nothing to prevent her from seeing any of them; that on the day *Page 302 of the accident, when she entered the room, there was no obstruction to her view anywhere; that she went to a closet farther from the door than the weighing-scales were, and which she could approach only by passing them, came out of the closet and went close by the scales to the washbowl which was within three feet of them, and stood there to wash and dry her hands; that she then stepped sideways to the towel-rack on her right, which was within six inches of the scales, and stood there putting on her gloves. During this time her back was turned toward the closets, so that she was looking toward these objects nearby on the wall. She further testified that her next movement was turning again to her right, "around directly facing the door to go out," or to allow her sister to pass by her to the washbowl. This movement placed her facing the scales and still about six inches from them; and she said that, when she thus turned, there was nothing to prevent her from seeing the scales. Then, she testified, she "started to go ahead," "walked straight along," and struck her foot against the base of the scales and fell over them upon the floor.

    The plaintiff's sister, who was the only other person in the toilet-room, testified that she saw the plaintiff standing nearer to the scales than to the washbowl and towel-rack, putting on her gloves and facing the wall on which these objects were located; and that she then spoke to the plaintiff, who turned around to face her, "apparently made a step or two forward," and fell.

    The weighing-machine was a large object, its upright frame standing out from the wall of the room and extending upward from the floor five or six feet, and its base filling a space on the floor seventeen inches wide and twenty-five inches long, and nearly eight inches high. In its position it was in plain sight of any person *Page 303 standing or moving from place to place in the room. When the doors of the closets were shut, there was sufficient space in which to pass by this machine safely; and when any of the doors was open to its full extent, it would be an obstacle merely temporary and easily removable. Or a person in haste or unwilling to take the slight trouble of pushing the door aside, might pass the scales by stepping upon its base with no considerable inconvenience and in perfect safety. It is difficult to understand how it could be found that the position of this machine, in these surroundings and in this situation, was dangerous to any person using ordinary care. It is true that the court permitted the jury to view the premises; but it does not appear that their inspection put them in possession of any material information not contained in the evidence printed in the record.

    We cannot escape the conclusion, however, that if the plaintiff did not in fact know of the condition in the room occasioned by the position of this machine, she would have known of it if she had used her senses in a reasonable way, and that her accident was due to her own inattention and carelessness as to her surroundings. It seems that there was only one person besides the plaintiff in the room at the time of the accident, and no hindrance nor occasion for hurry or excitement, nor anything to divert her attention from her surroundings and her way. To determine whether she was negligent, she must be held to have been required to act upon what she should have known as well as upon what she knew. Snow v. Coe BrassMfg. Co., 80 Conn. 63, 70, 66 A. 881. The evidence shows that the jury did not hold her to this requirement. They must have concluded that her failure to act upon what she should have known was not such negligence as would deprive her of the right to redress. *Page 304 In this, we think, they mistook the law and misinterpreted the consequences of her conduct. Clark v.Torrington, 79 Conn. 42, 44, 63 A. 657; Ware v.Evangelical B. B. M. Soc., 181 Mass. 285, 286,63 N.E. 885. A plaintiff who has been negligent may recover only when his negligence did not contribute materially to produce the resulting accident. Even concurrent negligence of each party, if it be so related to the resulting injury as to be regarded an efficient or proximate cause of it, will preclude a recovery by the plaintiff. Radwick v. Goldstein, 90 Conn. 701,98 A. 583. The failure of a person injured to act upon what he knew, or in the exercise of due care should have known, of a danger to which he is exposed, when there is nothing to prevent or excuse him from doing so, is negligence, as a matter of law, which will prevent his recovery. In any action for negligence, the duty or degree of care required of the respective parties is a question of law which is reviewable by this court on appeal. Snow v. Coe Brass Mfg. Co., 80 Conn. 63,66 A. 881.

    This plaintiff was obliged to take up and carry the burden of proving not only the alleged negligence of the defendant, but also her own due care, either by direct evidence or by proving "facts and circumstances" which "fairly and reasonably support and justify the inference of negligence on the one hand and of due care on the other; for a jury is never at liberty to guess or surmise the existence of either." Fay v.Hartford Springfield Street Ry. Co., 81 Conn. 330,71 A. 64. But it appears in the undisputed evidence that if the position of the weighing-machine was in fact dangerous, the plaintiff failed to make use of her own senses to escape the danger which she would have known if she had used due care, and which by such use she might have avoided; and for her failure, no reasonable *Page 305 excuse appears. Her conduct, therefore, was negligence as a matter of law. Fay v. Hartford Springfield Street Ry. Co., 81 Conn. 330, 71 A. 64. And there can be no doubt that it contributed materially to the resulting accident. Therefore the verdict of the jury in her favor had no foundation upon evidence which legally supported and justified it, and the court should have set it aside. Moreover, the admitted facts and circumstances would, we think, support and justify the conclusion that the plaintiff's own want of due care was at least concurrent negligence, so related to the consequent injury as to be an efficient and proximate cause.

    The conclusion we have reached renders it unnecessary to consider the assignments of error relating to the exclusion of evidence which the defendant offered to prove, that a witness employed by him had never known of another accident in the toilet-room during the preceding year of his employment.

    There is error and a new trial is ordered.

    In this opinion the other judges concurred.

Document Info

Citation Numbers: 98 Conn. 297, 119 A. 214

Judges: BURPEE, J.

Filed Date: 12/11/1922

Precedential Status: Precedential

Modified Date: 5/4/2017

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Feir v. Hartford , 141 Conn. 459 ( 1954 )

Farkas v. Halliwell , 136 Conn. 440 ( 1950 )

So. Md. Electric v. Blanchard , 239 Md. 481 ( 1965 )

Plucherino v. Shey , 108 Conn. 544 ( 1928 )

Martin v. Stamford Gas Electric Co. , 118 Conn. 319 ( 1934 )

Connelly v. Connecticut Co. , 107 Conn. 236 ( 1928 )

Miller v. Poli's New England Theatres, Inc. , 125 Conn. 610 ( 1939 )

Rozycki v. Yantic Grain Products Co. , 99 Conn. 711 ( 1923 )

Sullivan v. Krivitsky , 100 Conn. 508 ( 1924 )

Tuozzoli v. Coulson , 124 Conn. 691 ( 1938 )

Kerr v. Connecticut Co. , 107 Conn. 304 ( 1928 )

Smith v. L. S. Corporation , 133 Conn. 105 ( 1946 )

Kleps v. Dworkin , 127 Conn. 648 ( 1941 )

Zoccali v. Carfi , 128 Conn. 168 ( 1941 )

Lutzen v. Henry Jenkins Transportation Co. , 133 Conn. 669 ( 1947 )

Hizam v. Blackman , 103 Conn. 547 ( 1925 )

Leverone v. New London , 118 Conn. 463 ( 1934 )

Boyd v. Geary , 126 Conn. 396 ( 1940 )

Annunziato v. Gu-Ta, Inc. , 120 Conn. 114 ( 1935 )

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