Opinion
Argued December 8th, 1937
Decided December 21st, 1937.
ACTION to recover damages for personal injuries, alleged to have been caused by a defective sidewalk, brought to the Superior Court in Middlesex County and tried to the court, O'Sullivan, J.; judgment for the plaintiff and appeal by the defendant. No error.
Don Cambria, for the appellant (defendant).
Samuel H. Rosenthal, for the appellee (plaintiff).
The plaintiff brought this action to recover for injuries suffered by a fall upon a sidewalk in Middletown which he claimed was defective. The defendant, appealing from a judgment for the plaintiff, does not claim before us that the sidewalk was not defective but it attacks the statement in the finding that the defective condition had existed for at least three months before the accident and contends that there was no basis for a finding that the city had constructive notice of it. There was abundant evidence in the record that the condition of the sidewalk had been substantially the same for two or three months before the plaintiff fell upon it, and the substantial dispute in evidence was whether a flagstone was missing at the place of the accident. The trial court found it unnecessary to determine that question, finding that it had either been removed or had sunk down but that in either event it produced a defect in the sidewalk. The conclusion that the city had constructive notice of the defect is amply supported by the facts found. The only other claim of error pressed before us is that the amount of damages awarded was excessive, and specifically that the trial court could not properly find that the injuries received by the plaintiff were very painful and caused great suffering to him. This is an inference which the trial court could reasonably have drawn. Upon the facts stated in the finding the amount of damages awarded cannot he held excessive.