The plaintiff brought this action to recover damages for injuries suffered when he fell into an open areaway constructed and maintained in connection with a fire station of the defendant city, and *Page 15 from a judgment for the defendant has appealed. He seeks certain changes in the finding, but as made it sufficiently presents the issues of law. It states the following facts: The defendant owned a piece of land which was bounded upon the east by a passway sixteen feet wide, on the east side of which was a tract of land owned by Frank Santoro, in part occupied by certain tenements. Neither the defendant nor Santoro owned the fee of the land included in the passway. The defendant built the fire station upon its property, the easterly wall being about three feet west of the line of the passway. In connection with the building it constructed an areaway, used to remove ashes from the basement, which extended to such a distance that about fourteen inches of it were within the passway. The areaway was surrounded by a coping raised approximately five inches above the level of the pavement of the passway. When constructed the areaway was covered by two iron doors, opening one to the north and the other to the south, and held in a vertical position when open by chains and an iron bar. The existence of the areaway did not interfere with the ordinary and proper use of the passway, nor was its construction wrongful in nature or in intent. Prior to June 13th, 1930, the chains designed to hold the doors in a vertical position had become worn and broken and on that day the doors were open and lying flat on the ground, leaving the easterly side of the areaway entirely unguarded and unprotected, a situation which had existed for two days before that time. In the evening of that day the plaintiff had been visiting the occupant of one of the tenements on the Santoro property. In going to an automobile which was waiting for him, standing opposite the areaway, he went around the rear, tripped on the coping and fell into the areaway, suffering the injuries to recover *Page 16 for which he brought this action. It was dark at that place in the areaway, the plaintiff had no prior knowledge of its existence and was entirely without fault or negligence. He had a legal right to be upon the passway and was lawfully using it. From these facts the trial court concluded that the areaway as created and maintained by the defendant did not constitute a nuisance, but that the conditions which caused the plaintiff to fall arose out of the negligence of the defendant, its servants and agents, and that the defendant was not liable in damages to the plaintiff because the acts of negligence were committed in the performance of a governmental duty as a municipal corporation.
It is difficult to determine the rationale of the trial court's decision. Its finding that the existence of the areaway did not interfere with the ordinary and proper use of the passway, in the connection in which it is made, evidently has no bearing upon any dangerous condition caused by leaving the doors of the areaway open. The finding that the construction of the areaway was not wrongful can hardly be reconciled with the statement that the defendant did not own the fee of the land of the passway. That the areaway, with the doors open and lying flat and nothing to guard it, did cause a condition of possible danger is evident from the finding that the defendant was negligent. The trial court has not found that this condition was not one the natural tendency of which was to create danger and inflict injury upon person or property, a conclusion which would also hardly accord with its finding of negligence; for the very basis of such negligence as was found would be that the defendant should have anticipated the likelihood of danger to users of the passway, if the areaway was left open and unguarded;Trasacco v. New York, N. H. H.R. Co., *Page 17 113 Conn. 355, 362, 155 A. 493; Bogoratt v. Pratt Whitney Aircraft Co., 114 Conn. 126, 141,157 A. 860; and the distinction between the two tests is so narrow that, had the trial court intended to make it, the finding would surely have so indicated. We are not called upon, therefore, to consider whether, had the trial court found that there was not such a condition as would have a natural tendency to create danger and inflict injury, this would be a conclusion of fact which we could not hold to be erroneous. Capozzi v.Waterbury, 115 Conn. 107, 160 A. 435.
If we turn to the trial court's memorandum of decision in the effort to determine the basis of its decision, we find a statement that the construction of the areaway was proper for the place, a statement hardly to be reconciled, as we have stated, with the finding that the defendant did not own any fee in the passway, and that the areaway was no nuisance open or closed so long as it was kept in order. The trial court then quoted a sentence from Hoffman v. Bristol,113 Conn. 386, 392, 155 A. 499, as follows: "It was not a structure or condition created by the city, certainly not by acts which were wrongful in nature or intent actual or implied; the fault, if any, consisted in the failure to use the requisite care in remedying a condition otherwise created or occurring." This paragraph of the memorandum concludes with the statement that allowing the ash pit to get out of repair had every characteristic of negligence. If the conditions necessary to create a nuisance were present, it might have arisen as well out of subsequent negligent omissions as out of the manner in which the situation was originally created. Hoffman v. Bristol, 113 Conn. 386,389, 155 A. 499; Philadelphia, Wilmington BaltimoreR. Co. v. Philadelphia Havre de Grace SteamTowboat Co., 64 U.S. (23 How.) 209, 216; Borough of *Page 18 Bathurst v. Macpherson, L. R. 4 App. Cas. 256, 267;Municipal Council of Sydney v. Bourke, L. R. (1895) App. Cas. 433, 441; Joyce, Nuisances, § 44; 46 C. J. 659. The Hoffman case is an example of a situation where the same facts might give rise to an action for negligence and one based upon a nuisance. That in this case the dangerous situation which came about was due to the negligence of the defendant's agents and servants would not be a sufficient basis for a conclusion that the areaway, left open and unguarded, was not a nuisance.
To sum up our discussion thus far, it is difficult upon the record to find a basis for the conclusion of the trial court that the extension of the areaway into the passway was not an unlawful act on the part of the defendant; it is not found that the situation created by leaving it open and unguarded was not one which would have a natural tendency to create danger and inflict injury; it is found that the conduct of the defendant's agents and servants was negligent and hence in effect that the situation was such that a likelihood of injury to persons using the passway was reasonably to be anticipated; and as matter of law a nuisance may exist although it has its origin in a negligent, omission to take steps to guard against danger. It follows that the conclusion of the trial court that there was no nuisance is not supported by the subordinate facts it has found and was apparently based upon some misapplication of the relevant rules of law. It cannot therefore stand.
It is true that the trial court goes on in its memorandum of decision to state that the doctrine of municipal liability for nuisance is a salutary one, when a real nuisance is created, but if the doctrine of governmental immunity is to survive at all, it should not be extended *Page 19 to cover cases where negligence is the substance of the complaint. While this conclusion of law does not appear in the finding, it apparently entered into the decision of the trial court and no doubt will be asserted upon a retrial of the action. In the sentence which the trial court quoted from our decision in Hoffman v.Bristol, we were distinguishing certain situations where the municipality, which it was sought to charge with liability for injury, at worst passively permitted a dangerous condition to continue where it might have remedied it. Here the defendant city itself had caused the areaway to be constructed, apparently wrongfully, and any negligence in leaving it open and unguarded was the negligence of its own servants. In Flynn v.West Hartford, 98 Conn. 83, 118 A. 517, we held that a town was liable on the ground of negligence where, in repairing a water main, it had made an excavation in and a pile of dirt upon a highway, and left them unguarded, as a consequence of which the plaintiff, driving his automobile into them, suffered injury. We said (p. 85): "Aside from the liability under the statute, the defendant would be liable under the common-law rule for an injury proximately resulting from the presence upon the highway of this pile of sand and earth and excavation, because it was responsible for their existence; it made the excavation, it piled up the sand and earth and left them inadequately guarded." Here the defendant caused the areaway to be constructed and its agents and servants left it open and unguarded when they should reasonably have anticipated the likelihood of danger to persons using the highway. The situation is not within the exception to the liability of a municipality for injury due to a nuisance for the existence of which it is not responsible. *Page 20
There is error, the judgment is set aside and a new trial ordered.
In this opinion HAINES and BANKS, Js., concurred.