Belhumuer v. City of Bristol

• Citation: 121 Conn. 475,185 A. 421
• Court: Supreme Court of Connecticut
• Decision Date: 10 June 1936
• Parties: BELHUMUER v. CITY OF BRISTOL et al.

185 A. 421

121 Conn. 475

BELHUMUER v. CITY OF BRISTOL et al.

Supreme Court of Errors of Connecticut.

June 10, 1936

Appeal from Court of Common Pleas, Hartford County; Abraham S Bordon, Judge.

Action by Eldege D. Belhumuer against the City of Bristol and the Lane Construction Corporation for an injury to an automobile claimed to have been due to a defective highway. Before trial, the City of Bristol was dropped as a party defendant and the case was tried to the court against the Lane Construction Corporation. Judgment for plaintiff, and defendant appeals.

Error judgment reversed, and cause remanded, with directions to enter judgment for defendant.

Adrian W. Maher, of Bridgeport, and Martin E. Gormley, of New Haven for appellant.

S. Russell Mink and Frederick W. Beach, both of Bristol, for appellee.

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

AVERY Judge.

The essential facts of this case as they appear in the finding are as follows: In November, 1934, the state highway department undertook a construction project on Terryville avenue, a public state highway, in Bristol, Conn. On November 26th of that year, the highway commissioner caused to be posted at each end of the job a sign eight feet by eight feet containing the following warning: " Caution-Construction Work-This sign legally closes this road to traffic-under chapter 80, section 1513, General Statutes of 1930-Pass at your own risk. State Highway Commissioner." The contract was awarded to the defendant, the Lane Construction Corporation, which had complete control over the work, and, during its progress, of the highway. Although the project was initiated in November, actual construction was commenced in April, 1935, and excavation was started about three weeks before the date of the accident and completed about seven or eight days before that date. Terryville avenue runs north and south and immediately south from the construction work is a steep grade descending in a northerly direction, the bottom of which was approximately coincident with the work under construction. In excavating, the contractor caused a manhole in the road to be elevated above the surface about eight or nine inches on all sides, except the southerly side, which appeared to be even with the surface to one approaching from that direction. No guard or rail was placed about it and no warning of its presence or its elevation was given to users of the highway. During the construction, the highway was open to traffic.

On May 14, 1935, at about 8 o'clock in the morning, the plaintiff was operating his automobile in a careful manner in a northerly direction, on Terryville avenue. As he approached the bottom of the hill, he observed that the road ahead was under construction and saw the manhole from thirteen to fifteen feet away and believed that it was level with the surface ahead. When he realized that it protruded above the surface, he applied his brakes and attempted to avoid colliding with it, but was unable to do so. As a result, the under part of his automobile struck it and was damaged. The warning sign had been moved several feet to the east from its original position and was not readily visible to one approaching from the south, and the plaintiff did not see it.

The court concluded that the defendant was negligent and the plaintiff in the exercise of due care and entered judgment for the plaintiff. The sole claim of the defendant on this appeal is that under General Statutes, § 1513, the notice, having been posted by the state highway commissioner that construction work was going on and that all persons traveling thereon did so at their own risk, relieved not only the state, but the contractor, from responsibility to the plaintiff for injuries due from the defective condition of the highway.

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