Beisiegel v. Town of Seymour

• Decision Date: 30 October 1889
• Citation: 19 A. 372,58 Conn. 43
• Court: Connecticut Supreme Court
• Parties: BEISIEGEL v. TOWN OF SEYMOUR.

19 A. 372

58 Conn. 43

BEISIEGEL

v. TOWN OF SEYMOUR.

Supreme Court of Errors of Connecticut.

Oct. 30, 1889.

Appeal from court of common pleas, New Haven county; DEMING, Judge.

H. Stoddard and C. J. Atwater, for appellant. E. P. Arvine and H. G. Newton, for appellee.

BEAEDSLEY, J. This is an action for damages for injuries to the plaintiff's horse upon a highway of the defendant town. The defendant answered as follows:"(1) The plaintiff is, and for many years has been a resident of the town of Woodbridge in said county, and during the whole period of his residence in said Woodbridge has been accustomed to use the public highway known as the' Woodbridge Road,' mentioned in the plaintiff's complaint, and running through the defendant town for a distance of about one-half of a mile, for the purpose of passing to and fro between his house in said town of Woodbridge and the village of Ansonia, and, by reason of such long-continued use of said public highway has become and is well acquainted with the same, and in particular was, at the time of serving upon the defendant the paper hereinafter mentioned, well acquainted with the place where said highway is alleged in the plaintiff's complaint to have been defective, and, by reference to various objects in and along said highway, such as trees, stones, breaks, etc., could have described the place of the injury alleged in the plaintiff's complaint with reasonable minuteness and accuracy. (2) Written notice of said alleged injury, and the nature and cause thereof, and of the time and place of its occurrence, was not given to the selectmen of the defendant town within sixty days thereafter, otherwise than by a certain paper, which paper is in the words and figures following, to-wit: To the town of Seymonr, and to either of the selectmen thereof. Notice is hereby given that on the 7th day of February, 1888, at about 11 o'clock in the forenoon, in and upon a public highway generally known as the "Woodbridge Road," extending between Ansonia and Woodbridge, past the reservoirs of the Ansonia Water Company, and at a place in and upon said road in said town of Seymour near the former residence of Lyman Clinton, by means of said road at said last-named place being defective, out of repair, washed, gullied, and rough, and of snow, ice, and water thereon, Jacob Beisiegel, of Woodbridge, sustained injury and damage to a certain valuable mare then and there owned and driven by him, the said Beisiegel, in which said mare was greatly bruised, cut, sprained, and lamed in and upon the feet, legs, chest, shoulders, back, and other parts, and otherwise injured, and that the said Jacob Beisiegel claims damages therefor. Dated at Derby this 18th day of February, 1888. JACOB BEISIEGEL.'" The plaintiff demurred to the answer, and the court sustained the demurrer. The defendant made no further answer, and the court, upon a hearing in damages, found the facts as follows:

The plaintiff is the owner of a farm in the town of Woodbridge, where he has resided for about 35 years. Running from the village of Ansonia to the highway connecting New Haven with Seymour is a highway partly in the town of Seymour, and for the past 10 years the plaintiff has been in the habit of driving over this road two or three times a week, carrying farm produce to the village. On the morning of February 7, 1888, the plaintiff was driving along this highway with a load of produce, which he was carrying from his farm in Woodbridge to the village of Ansonia, and when at a place about 160 feet north of the residence of Lyman Clinton, in the town of Seymour, and about 60 feet south from a certain sluice mentioned in the complaint, the left fore foot of the plaintiff's horse broke through the snow and ice which had accumulated in the road. The fore foot and leg of the horse entered the ice up to the knee. The horse was thrown forward, cramping the leg, and holding it in the ice, so that, as the hinder foot was carried forward, it entered the same hole in the ice, and while the fore foot was held by the ice the hind foot came in contact with it, cutting the foot, and laming and injuring the horse to such an extent as to render it unfit for use for the space of two months thereafter, and from which the horse had not fully recovered at the time of the trial of the cause. The road is an ordinary country road through a sparsely settled region, over which there is a limited amount of travel. The country is rough and hilly, and, for a considerable distance each way from the place where the accident occurred, is upon the side of a hill; the hill rising to the westward above the road for a distance of several hundred feet. The drainage from this hill comes down to the road, under which the sluice has been constructed for the purpose of carrying off the surplus water, and through and by means of the sluice the drainage from the hill should have been carried across the road. At places along this hill-side the native rock comes to the surface, and in places the bedrock has been struck in working the road. Near where the accident occurred, and 60 feet south of the sluiceway, a water-bar had been constructed across the road; and from this water-bar the water had set back, and, by reason of the stoppage of the sluiceway, had accumulated in the road for a distance of several hundred feet, and at the time of the accident this accumulation of water and snow had frozen into a smooth bed of ice. The day prior to the accident the snow had melted freely, and during the night the thermometer had fallen to near the zero point, forming a substantial crust of ice upon the surface. The water-bar where the accident occurred was the ordinary and usual bar for turning water upon country roads, and there was no evidence and no claim that it was out of repair, nor that the surface of the road was out of repair, except as herein stated, and except that the sluiceway had been neglected and allowed to become stopped up; thus preventing the water from draining off from the road-bed, and causing it to set back and accumulate in the road. Charles H. French had' worked upon the road for the selectmen of the town of Seymour, but had not worked upon it for three or four years prior to the time of the accident; and there was no evidence that the sluice had been cleaned, or any work done upon the road, for at least three years prior to the time of the accident. The only written notice of the injury complained of, and of the nature and cause thereof, and of the time and place of its occurrence, given by the plaintiff to the selectmen of the town of Seymour, is the one recited in the defendant's answer, which notice was delivered to the selectmen of the town within 15 days after the time of the accident. This notice was offered by the defendant, and received in evidence by the court. The defendant did not claim that the selectmen of the town were misled by the notice, or that they were unable to find the place of the accident. The place where the accident occurred was about two miles from the village of Ansonia. The plaintiff offered evidence as to the amount of damages sustained, but offered no evidence as to the condition of the highway in question, claiming that the allegations in the complaint, except as to the amount of damages, were admitted by the failure of the defendant to deny and disprove them, and that these allegations must be accepted by the court as true unless denied by the defendant, or until some evidence was offered by the defendant to disprove them. The defendant offered evidence to prove the location of the road upon the side of the hill, and that the country was sparsely settled, rough, and...