Albright v. MacDonald
| Decision Date | 08 January 1936 |
| Citation | 121 Conn. 88,183 A. 389 |
| Parties | ALBRIGHT v. MacDONALD, Highway Com'r. |
| Court | Connecticut Supreme Court |
Appeal from Superior Court, Fairfield County; John Rufus Booth Judge.
Action by George Albright against John A. MacDonald, Highway Commissioner, for damages alleged to have been caused by the failure of defendant to maintain a railing or fence along a public highway. From a judgment for plaintiff, defendant appeals.
No error.
Raymond E. Baldwin, of Bridgeport, for appellant.
Philip Reich and Samuel Reich, both of Bridgeport, for appellee.
Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.
The finding states the following facts: The plaintiff with two companions was driving in a Pontiac roadster, about 10 p. m. August 2, 1934, in a general northerly direction from Derby toward Stevenson Dam on a state highway known as route No 34. He was on the right-hand side of the roadway and proceeding at a speed of approximately 25 miles per hour. It had been raining and a light mist was then falling and it was dark. The roadway was of water-bound macadam with an oiled surface treated with tar; it was 18 feet wide with shoulders five feet wide, the latter being constructed of oiled gravel having the same appearance as the roadway itself but softer. The roadway was crowned and was wet and slippery. When near a pole which was alongside the road and was marked No. 127, another car came from the opposite direction around a curve, its lights affecting the plaintiff's vision and making it difficult or impossible for him to see the highway beyond the approaching car. The plaintiff applied his brakes, which were in good condition, and his car skidded toward the opposite or westerly side of the roadway, and though he made every reasonable effort to maintain control of it, it continued on over the shoulder of the road onto the adjoining ground, and the skid continued diagonally toward the top of an embankment for 15 to 18 feet until at a point about 50 feet north of pole No. 127 it toppled sideways down the embankment toward the Housatonic river, and rolled over 40 to 50 feet until stopped by a tree about five feet from the river. The plaintiff was rendered unconscious and sustained severe injuries. This portion of the highway was constructed by the defendant in 1931 and was under his control on the date in question. For a distance of 195 feet no fence had been erected along this part of the highway, although there was a regulation fence both north and south of the point where the plaintiff's car went off the road. Legal notice of the accident was given to the highway commissioner as required by statute.
The court, by agreement of the parties, made a personal inspection of the premises. Evidence obtained by the court upon such inspection was properly taken into account in reaching the conclusion and making up the finding. McGar v. Bristol, 71 Conn. 652, 655, 42 A. 1000; Forbes v. Orange, 85 Conn. 255, 257, 82 A. 559; Lunny v. Pepe, 116 Conn. 684, 687, 165 A. 552; Greenberg v. Waterbury, 117 Conn. 67, 74, 167 A. 83. Manifestly, we cannot review evidence thus obtained or know what part it played in the court's conclusions. Heublein, Inc., v. Street Commissioners, 109 Conn. 212, 218, 146 A 20.
The defendant assigns error as to certain of the facts contained in the foregoing general statement. One of these is that the road was slippery. That finding was fully supported by the specific admission of the assistant engineer of the highway department and by the statement of a policeman that the police were not permitted to ride there on motorcycles when the road was wet because it was dangerous. A study of the record evidence shows that while there were contradictory versions as to some features of the case, there was evidence which justified all the findings objected to. Other assignments relate to the failure of the court to find certain facts requested by a draft finding. One of these concerns a statement claimed by the defense to have been made to the police by the companions of the plaintiff later the same evening. This statement was to the effect that the plaintiff's car was sideswiped by another car overtaking and passing the plaintiff and thus caused to skid. On the stand each of these men flatly denied that they had ever made such a statement, and each testified that no car overtook and passed them, but that the lights of a car coming from the opposite direction were blinding, and that the plaintiff then applied his brakes to slow down the car and the skid followed. This presented a question of credibility for the trial court, and we cannot of course disturb the conclusion. The defense also seeks to add to the finding a statement as to the marks said to have been made by the plaintiff's car and the distance it traveled before going over the embankment. It is quite apparent from the record of the testimony that these matters were the subject of dispute on the trial, and the defendant's version cannot therefore be included in the finding.
A question of paramount importance presented by this appeal is well stated in the defendant's brief: " Was the defendant highway commissioner under a legal duty to maintain a highway fence under the circumstances and conditions of this case, or was the highway reasonably safe for travel in view of the purpose for which it was used?" The plaintiff relies upon General Statutes, §§ 1419 and 1481. The former provides that " the party bound to maintain any bridge or road shall erect and maintain a sufficient railing or fence on the side of such bridge, and of such parts of such road as are so made or raised above the adjoining ground as to be unsafe for travel; and whoever shall suffer damage in his person or property by reason of the want of any such railing or fence may recover damages from such party." The pertinent provisions of the latter section are that any person injured from the " neglect or default of the state or any of its employees *** by reason of the lack of any railing or fence on the *** part of such road which may be raised above the adjoining ground so as to be unsafe for travel, which railing or fence it shall be the duty of said highway commissioner to maintain, *** may bring a civil action to recover damages sustained thereby against the highway commissioner."
The plaintiff contended that that portion of the highway where his car went off the road and down the embankment was not reasonably safe, and that it was thus the duty of the highway commissioner to maintain a sufficient railing or fence there. The finding shows that at this point the ground adjoining the westerly edge of the highway...
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