Hartwell v. Town of Watertown

• Decision Date: 01 February 1938
• Citation: 197 A. 755,123 Conn. 657
• Court: Connecticut Supreme Court
• Parties: HARTWELL v. TOWN OF WATERTOWN.

197 A. 755

123 Conn. 657

HARTWELL v. TOWN OF WATERTOWN.

Supreme Court of Errors of Connecticut.

February 1, 1938

Appeal from Superior Court, Litchfield County; Arthur F. Ells and John Rufus Booth, Judges.

Action by Grace S. Hartwell against the Town of Watertown to recover for personal injuries alleged to have been caused by a defective highway wherein plaintiff's demurrers to certain special defenses were sustained and to others were overruled. The issues were tried to the jury. Verdict and judgment for defendant, and plaintiff appeals.

No error.

U. G. Church, of Waterbury, for appellant.

John H. Cassidy, of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

BROWN Judge.

The first count of the complaint alleges that the defendant town dug a ditch in one of its highways; that it negligently omitted to protect it; that, because of its situation construction, and the negligent way it was maintained, this constituted a nuisance; and that by reason thereof the plaintiff in crossing the ditch, in the exercise of due care fell in and was injured. The second count alleges the same facts, also that this constituted a defect in the highway, and that the plaintiff gave the defendant due notice of the accident and her injuries. By its answer the defendant denied all of the allegations of the complaint except that as to notice, and pleaded this special defense to each count: ‘ At the time of the injury complained of, signs were maintained at either end of said highway notifying travelers that said highway was under repair and that persons used the same at their own risk; the plaintiff saw or ought to have seen such signs and knew or ought to have known that said highway was under repair, wherefore she assumed the risk of traveling upon said highway at the time and place alleged in the complaint.’ The plaintiff demurred to these defenses solely on the ground that, since this street was not alleged to be a state highway which could be or was closed by the erection of signs pursuant to section 1513 of the General Statutes, the erection thereof did not relieve the defendant of liability. The court ruled that the erection of the signs was not a defense in and of itself, but that there were other allegations as to certain conditions and certain conduct of the plaintiff entitling the defendant to raise the issue of assumption of the risk, a defense which it must affirmatively plead. For this reason it overruled the demurrers.

Whether, in the absence of any mention or description of the ditch where the plaintiff fell, the danger of crossing it, or her appreciation thereof, these other allegations that the plaintiff saw or ought to have known the highway was under repair were sufficient to supply the further facts essential to an adequate plea of assumption of the risk, we need not determine. This is by reason of what subsequently transpired as shown by the record. The plaintiff joined issued on these defenses of assumption of the risk by her replies denying all of the matters therein alleged. During the trial the defendant without objection offered evidence to prove, and claimed to have proved, that the plaintiff did assume the risk of crossing the ditch and all of the essential facts in support thereof, which the plaintiff disputed by her evidence and claims. The court fully charged the jury upon this issue.

Referring to a claimed error in overruling a demurrer to the complaint on an appeal from a judgment for the plaintiff in a case tried to the court, this court said: ‘ But it does not follow that a reason of appeal of that nature is to be decided without reference to the proceedings following the answer. If these, without the imposition of any new and improper burden upon the defendant, result in a judicial finding by which the facts alleged are supported, and their legal effect broadened by other facts not specifically alleged, but within the issue, this court is not to shut its eyes to the finding, and consider the demurrer as if it had been the termination of the pleadings. We do not sit to try moot cases. Having now all the facts before us, we are not required to rule upon what would be the result of some of them if standing...