Opinion
The named plaintiff was injured in a fall from an abutment of a bridge being constructed by the defendant W for the defendant railroad. The mere evidence that the plaintiff's foot struck some object as he walked along the abutment in search of the construction foreman to get a receipt for a delivery to the job was insufficient to remove the issue of negligence from the realm of speculation. Even if the status of the plaintiff was that of a business visitor, he had to show that the defendants had notice, actual or constructive, of the defective condition and that the condition had existed for a sufficient length of time to have afforded the defendants, In the exercise of reasonable care, an opportunity to discover it and either to remedy it or give warning of its presence. As there was no evidence of the nature of the object or how long it had been there, the jury could not have found that these elements were established.
Argued December 7, 1960
Decided January 12, 1961
Action to recover damages for personal injuries, alleged to have been caused by the negligence of the defendants, brought to the Superior Court in Windham County and tried to the jury before Troland, J.; the court directed a verdict for the defendants, and from the judgment thereon the named plaintiff appealed. No error.
Jay W. Jackson, for the appellant (named plaintiff).
William L. Hadden, Jr., with whom, on the brief, was Clarence A. Hadden, for the appellees (defendants).
The defendant Westcott Construction Corporation was engaged in constructing a bridge in Putnam for the defendant railroad. The named plaintiff, hereinafter called the plaintiff, was employed by a firm which supplied kerosene to Westcott at the bridge site. Westcott knew that it was the practice of the plaintiff's employer to require a receipt for all deliveries. On three occasions prior to March 28, 1957, the plaintiff delivered kerosene to the project, and on each occasion he sought out Westcott's foreman at different places around the construction area to obtain a receipt. The plaintiff was not restricted from going anywhere in the area, and there were no signs or barricades warning of any danger. On March 28, 1957, he made a delivery of kerosene to the construction site. He searched for the foreman to obtain a receipt and was told by employees of Westcott that the foreman was on an abutment about thirty-three feet above the ground. The plaintiff climbed a ladder to the top of the abutment and started to walk toward the foreman, who was about forty feet away. He reached a point about ten feet from the foreman when his foot struck some object and he was caused to fall to the railroad tracks thirty feet below, sustaining serious injuries. No evidence was presented as to the nature of the object which caused the plaintiff's fall or how long it had been there. During argument, counsel for the plaintiff stated that the appeal was abandoned as to the defendant railroad.
It is unnecessary to determine whether the status of the plaintiff, when he climbed the abutment, was that of an invitee, as he claims, or no more than that of a licensee, as Westcott contends. Knapp v. Connecticut Theatrical Corporation, 122 Conn. 413, 416, 190 A. 291. In either case, it was fundamental to a recovery by the plaintiff that he establish that his injuries were caused by negligence on the part of one or both of the defendants. The plaintiff was required to remove this issue from the realm of surmise and speculation. Burke v. West Hartford, 147 Conn. 149, 151, 157 A.2d 757. The defendants were not insurers of the safety of the plaintiff. Even if he was a business visitor, he was required to establish that the defendants had notice, actual or constructive, of the defective condition which allegedly caused him to fall, and that the condition had existed for a sufficient length of time to have afforded the defendants, in the exercise of reasonable care, an opportunity to discover it and either to remedy it or to give warning of its presence. Esposito v. Hospital of St. Raphael, 142 Conn. 95, 97, 111 A.2d 545; Kunz v. Connecticut Co., 127 Conn. 364, 366, 16 A.2d 831; Drible v. Village Improvement Co., 123 Conn. 20, 24, 192 A. 308. The evidence was completely barren of facts from which these elements could be established. The action of the court in directing a verdict for the defendants was proper.