Bartram v. Town of Sharon

Decision Date25 April 1899
CourtConnecticut Supreme Court
PartiesBARTRAM et ux. v. TOWN OF SHARON.

Appeal from superior court Litchfield county; George W. Wheeler, Judge.

Action by Isaac N. Bartram and wife against the town of Sharon on the statute for injury through defect in a highway, brought to the superior court for Litchfield county on the first Tuesday of May, 1892. Tried to the court, and judgment rendered for the plaintiffs. Defendant appealed. Reversed.

The ground on which the judgment below is reversed renders unnecessary any statement relative to several claims of error in rulings on questions of pleading and evidence. The essential facts found by the court (G. W. Wheeler, J.) are these: The plaintiff Mrs. Bartram, on the evening of March 27, 1891, entered as a gratuitous passenger the three-seated open wagon of her neighbor Ransom B. St. John, and started, in company with six others, including St John, all being invited guests, to attend a wedding anniversary in Sharon valley, about 1 1/2 miles from Sharon village, in the town of Sharon. Mr. St John drove his own team. The evening was dark, and none of the party had a lantern. Mr. St. John could see his horses and the roadway directly in front of him as he drove along. When he reached a point in the highway covered by a stone sluice, the wagon ran off the northerly end of the sluice, causing it to overturn, throwing the occupants out, including Mrs. Bartram, and she sustained serious injuries affecting her health and her business. The highway at this point was defective, within the meaning of section 2673 of the General Statutes. The town neglected to repair this defect. The defect was a proximate cause of the accident which would not have happened without the defect. Mr. St. John knew the condition of the road. He could see the roadway, and ought in the exercise of ordinary diligence, to have avoided running off the sluice. He could have driven on another part of the road with no further inconvenience than some jolting. He did not use ordinary care, and his failure to use ordinary care, combined with the defective highway, caused his wagon to overturn. Had he exercised ordinary care, the accident might have been avoided. The court ruled that the contributory negligence of St. John could not be imputed to Mrs. Bartram, and rendered judgment that the plaintiff recover $800 damages. Among the reasons of appeal assigned are the following: The court erred in ruling that the negligence of St. John was not imputable to the plaintiff, in deciding the issues for the plaintiff after finding that St. John did not exercise ordinary care, and in rendering judgment for the plaintiff upon the facts found. Error is also claimed in the inference of fact that Mrs. Bartram was a gratuitous passenger.

Arthur D. Warner, Leonard J. Nicnerson, and James Huntington, for appellant.

Donald T. Warner and Howard F. Landon, for appellees.

HAMERSLEY, J. (after stating the facts). The facts found by the trial court do not support the judgment, whatever view may be taken of the other rulings claimed as erroneous. It is certainly true that one cannot be guilty of negligence unless through some act or omission by him acting for himself cr through his servant or agent: The Bernina, 12 Prob. Div. 58; Little v. Hackett, 116 U. S. 366, 6 Sup. Ct 391; Randolph v. O'Riordon, 155 Mass. 331, 336, 29 N. E. 583. The obiter dictum cited from Peck v. Railroad Co., 50 Conn. 379, 392, does not affect this settled law. It is also true that when the culpable negligence of each of two persons is the proximate cause of injury to another, the injured party may recover his whole damage from either or both of the wrongdoers. Burrows v. Coke Co., L. R. 5 Exch. 67, 71; Carstesen v. Town of Stratford, 67 Conn. 428, 435, 35 Atl. 276. This conclusion is based upon the common law of negligence. By that law every person is bound to exercise ordinary care in respect to his acts or omissions that may endanger others. If he neglects to use this ordinary care, he is legally in fault. He violates a legal duty which he owes to each person who may be exposed to the danger. That person has a correlative right to the performance of such duty; and, if injured through such fault as the proximate cause, he has a right of action to recover damages of the wrongdoer. The party injured, however, is subject to the same law. He owes the same duty of ordinary care. If he violates that duty, he is likewise in fault; and the person damaged through his fault has a right of action against him. When, therefore, mutual damage is the result of the concurrent fault of two persons, each has suffered by the other's wrong. The equitable rule is that each should suffer in damages in proportion to his wrong. This rule is, under certain circumstances, applied in courts of admiralty. The Woodrop-Sims, 2 Dod. 83, 85. It is to a certain extent applied at law in some states under the questionable theory of "comparative negligence." Railroad Co. v. Gretzner, 46 Ill. 74, 83; Railway Co. v. Rollins, 5 Kan. 167, 180; Railroad Co. v. McElmurry, 24 Ga. 75, 80. It has more or less influenced the results reached in many decisions. But courts of law no not administer such equitable rule. In Heil v. Glanding, 42 Pa. St 493, 499, the opinion of the court, delivered by Justice Strong, gives as the reason "that the law cannot measure how much the damage suffered is attributable to the plaintiff's own fault." In The Bernina, supra, Lindley, L. J., says: "But why, in such a case, the damages should not be apportioned, I do not profess to understand. However, as already stated, the law on this point is settled." 12 Prob. Div. 89. Perhaps the main reason is that a trial by jury is unfitted for the safe administration of the rule. Possibly the principle that there shall be no contribution between joint wrongdoers may have had some influence. But, whatever the reason may be, law courts have adopted the more practicable rule that, when the fault of the plaintiff concurs with the fault of the defendant as a proximate cause of the injury, the plaintiff shall recover nothing. This concurrence of the fault of two wrongdoers, by which one of them is injured, is called "contributory negligence on the part of the injured party." In several of our states this arbitrary rule has been treated as constituting, not a defense, but a condition precedent to any right of action. Where the rule is so treated, the burden of proof is on the plaintiff to show use of ordinary care on his part. Such is the law in this state, and in Park v. O'Brien, 23 Conn. 339, 345, Chief Justice Storrs says, "If the plaintiff's negligence contributed essentially to the injury, it is obvious that it did not occur by reason of the defendant's negligence;" although it did in fact occur by reason of the negligence of each; and this suggests the theory of contributory negligence. The plaintiff in such a case, as was said by Lindley, L. J., in The Bernina, supra, "cannot, with truth, say that he has been injured by the defendant's negligence. He can only with truth say that he has been injured by his own carelessness and the defendant's negligence; and the two combined give no cause of action at common law." If, however, the plaintiff is injured by means of the negligence of A. and B., each being a proximate cause, he has a right of action at common law, notwithstanding he cannot say with truth as to either one that he was injured by his negligence. In such case, as we have already seen, the injured party can recover his whole damage from either or both of the wrongdoers. The essence of the law is that a tort feasor is responsible for the proximate effect of his tort; and that responsibility is not changed by the fact that other tort feasors are also responsible for the same injury. The rule of contributory negligence is an exception to the general law. But this law of negligence has no application to the present action, which is not an action of negligence, but an action on a statute. We have not here the case of a party injured by the negligence of two wrongdoers. The town has committed no tort against the plaintiff. It is the statute only which entitles the plaintiff to compensation for his injury when that injury is caused through or by means of a defect in the highway. If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect He can only say with truth that he was injured by his own or another's carelessness and the defect; and the two combined give no cause of action under the statute. This distinction is stated in Eaton v. Railroad Co., 11 Allen, 500, 505. After holding that each of two wrongdoers is liable to the injured party for Injury caused by his negligence combining with that of the other, the court says: "The cases cited by the defendants in opposition to these propositions against towns for injuries occasioned by defects in highways are reconciled by the consideration that this liability of towns is wholly statutory, and, by the construction given to the statute, no action can be maintained unless the injury arises wholly from the defect." The Massachusetts statute in respect to the duty and liability of towns in the repair of highways is similar to our own, derived from an ancient statute expressed in substantially the same language as that used in the ancient statute from which our own is derived. It has uniformly been held in that state that an injury resulting from the negligence of a third person in connection with a defect in the highway does not happen by reason of the defect within the meaning of the statute. Rowell v. City of Lowell, 7 Gray, 100; Kidder v. Inhabitants of Dunstable, Id. 104, 105; Shepherd v. Inhabitants of Chelsea, 4 Allen, 113; Richards v. Inhabitants of Enfield, 13 Gray, 344, 346; Eaton v. Railroad Co., supra. The rule is thus stated by Chief Justice Shaw: ...

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  • Machado v. City of Hartford
    • United States
    • Connecticut Supreme Court
    • July 7, 2009
    ...sole proximate cause was to be the standard for determining liability under the municipal highway defect statute in Bartram v. Sharon, 71 Conn. 686, 695, 43 A. 143 (1899), wherein the court concluded that a municipality is not liable under the statute for "an injury caused by the culpable n......
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