Breen v. Town of Cornwall

• Decision Date: 01 November 1900
• Parties: BREEN v. TOWN OF CORNWALL.
• Court: Connecticut Supreme Court

47 A. 322

73 Conn. 309

BREEN

v. TOWN OF CORNWALL.

Supreme Court of Errors of Connecticut.

Nov. 1, 1900.

Appeal from superior court, Litchfield county; Silas A. Robinson, Judge.

Action by Julia C. Breen against the town of Cornwall for personal injuries caused by defective highway. The court sustained defendant's demurrer to the complaint, and plaintiff appeals. Reversed.

Paragraphs 1, 4, and 5 of the complaint are as follows: "(1) On June 23, 1897, and for a long time prior thereto, there was a dangerous defect in the public highway or road in said town of Cornwall known as the 'Cook Road,' at a point in said highway or road about two rods northerly of the ruins of an old house known as the 'Cook House,' which said defect consisted of dangerous rocks, from which the earth had been washed and worn away, and deep, dangerous crevices and holes' in said rocks; said dangerous condition being caused by the washing and wearing of the earth from said highway. Said highway or road was further defective at said point by reason of bushes and grass being allowed to grow up and overhang the traveled part of the same in such a manner as to hide the dangerous and defective condition of said highway from travel thereon, and for all of said reasons said road was unsafe." "(4) On said day the plaintiff, with due care, was driving a horse and wagon or cart along said highway or road, and by reason of the defective condition of said highway or road, as set forth and described in paragraph 1, the wheel of the wagon or cart in which the plaintiff was then riding, while traveling over said point in said highway or road, ran into, and was caught and held fast in, the crevices or holes in the rocks in said highway at said point; and by reason of the same the wheel to her wagon or cart in which she was then riding was broken, and she was thrown violently out upon the ground or rocks at or near the said point,—all of which while she was in the exercise of due care. (5) In consequence of said defective road, and of the catching and holding fast of the wheel of said wagon or cart in the crevices or holes of the rocks at said point as aforesaid, and of the breaking of said wheel and being violently thrown from said wagon or cart, the plaintiff was severely and permanently injured in her person. * * *" The statutory notice given by plaintiff to defendant, and set forth in the complaint, is as follows: "Cornwall Bridge, Conn., June 24, 1897. To the Selectmen of Town of Cornwall—Gentlemen: I hereby notify you that myself and a friend, Miss Mary McCormick, of Bridgeport, while driving on the road between the Warren turnpike and Richard Brophy's house,—I think the road is familiarly called the 'Cook Road,'— near the ruin of an old house, we were thrown out of our wagon on that ledge of rocks in the road. Our wagon was broken, and ourselves very much injured. As it is beyond dispute that the condition of the road was the cause of the accident, I shall hold the town of Cornwall responsible for the injuries done myself and wagon. That whole road is in a terrible condition. I should judge there has not been a spoonful of dirt put on it in more than a year. The bushes and grass hide holes, rocks, and other dangers, so that a driver cannot see danger until he meets it. We were several times nearly thrown out before we came to those rocks, so were driving very slowly and carefully when the accident occurred; otherwise, we should have been killed. I was thrown out headlong, and struck on the rocks, hurting my right shoulder, neck, and back. Miss McCormick hurt her hip and wrenched her ankle, which at present is swollen to twice its usual size. In fact, we can neither of us tell exactly, yet, the extent of our injuries; as the accident occurred yesterday,—June 23, 1807. Very respectfully, Julia C. Breen, Cornwall Bridge, Conn." The defendant demurred to the complaint upon the grounds that the notice did not contain a sufficient...