De Capua v. City of New Haven

• Decision Date: 16 April 1940
• Citation: 126 Conn. 558,13 A.2d 581
• Court: Connecticut Supreme Court
• Parties: DE CAPUA v. CITY OF NEW HAVEN et al.

13 A.2d 581

126 Conn. 558

DE CAPUA v. CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

April 16, 1940

Reargument Denied June 13, 1940.

Appeal from Superior Court, New Haven County; Ernest A. Inglis and Patrick B. O'Sullivan, Judges.

Action by Louis DeCapua against the City of New Haven and others, to recover damages for personal injuries alleged to have been caused by a defective railroad bridge, brought to the superior court in New Haven county where a demurrer to the complaint by the named defendant was sustained, and the issues were tried to the court as to the other defendants. From a judgment for defendants, plaintiff appeals.

Error and case remanded with directions.

HINMAN, J., dissenting.

Jeremiah D. Shea, John C. FitzGerald, and David E FitzGerald, Jr., all of New Haven, for appellant.

James W. Grady, of New Haven, and E. R. Brumley of New York City, for appellees.

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

MALTBIE Chief Justice.

The plaintiff was injured by reason of tripping over a bolt protruding from the planks of a bridge over a railroad track maintained and operated by the New York. New Haven and Hartford Railroad Company, whom the defendant trustees represent. He sued the defendant city and the trustees for damages for the personal injuries suffered. A demurrer filed by the city was sustained and the plaintiff concedes that no liability could be established as to it. The defendant trustees, to whom we shall hereafter refer as the defendants, admit, on the other hand, that the responsibility for any defective condition on the bridge rested upon them by reason of the provisions of § 3675 of the General Statutes, which requires railroad companies to keep in repair structures over their tracks at any highway crossing, including the planking or other surface material of a highway upon such a structure. The trial court concluded that the planked surface of the highway was in dangerous and defective condition and in need of repairs; that ordinary and reasonable inspection would have disclosed this condition to the defendants; that they knew or in the exercise of reasonable care should have known of it; that they had a fair and reasonable opportunity to repair the planked surface of the highway prior to the time the plaintiff was injured; and that the sole cause of his injuries was the defective condition of the bridge. It also concluded, however, that the only right of recovery which the plaintiff had proven was one under the provisions of § 1420 of the General Statutes, which authorizes a recovery by any person injured by reason of a defective road or bridge from the party bound to keep it in repair, and as the plaintiff had not given notice to the trustees within sixty days from the occurrence of the injury, as required by the terms of that statute, he could not recover. The plaintiff maintains that in addition to the right to recover authorized by this statute, he also was entitled to claim damages for the negligence of the defendants at common law, and that it was sufficient to give notice of the injury, as he did, within six months of its occurrence, as required by § 6029 of the General Statutes, as amended by § 1684c of the Cumulative Supplement of 1935, in force when the injury occurred, which required notice within that time in case of a personal injury to or death of any person or injury to personal property caused by the negligence of a railroad company. The basic question involved in this appeal is, then, whether the plaintiff might recover against the defendants for their negligence in permitting the dangerous condition upon the bridge at common law so that the sixty-day notice required by § 1420 would not be a condition precedent to the action.

The establishment and maintenance of public highways is a function of the state. Bartram v. Sharon, 71 Conn. 686, 692, 43 A. 143,46 L.R.A. 144, 71 Am.St.Rep. 225; Rudnyai v. Harwinton, 79 Conn. 91, 94, 63 A. 948,6 Ann.Cas. 988; Connecticut L. & P. Co. v. Southbury, 95 Conn. 242, 246, 111 A. 363; Yale University v. New Haven, 104 Conn. 610, 621, 134 A. 268, 47 A.L.R. 667. The state may, however, impose the duty of establishing or maintaining highways upon any agency which it chooses. Nicholson v. New York & N.H. R. Co., 22 Conn. 74, 85, 56 Am.Dec. 390; State ex rel. Bulkeley v. Williams, 68 Conn. 131, 158, 35 A. 24, 421,48 L.R.A. 465. As early as 1672 the state placed the burden of maintaining highways upon the towns. Acts of 1672, p. 7; Bartram v. Sharon, supra, 71 Conn., at page 694, 43 A. at page 143,46 L.R.A. 144, 71 Am.St.Rep. 225; Bacon v. Rocky Hill, 126 Conn.402, 11 A.2d 399; and, with certain exceptions, they have ever since been charged with that duty.

Beginning about 1735 the General Court in a number of instances authorized individuals to build and maintain bridges, permitting them to charge tolls to travelers at specific rates or granting them tax exemptions as compensation for their performance of the duty. See, for example, 8 Col.Rec. 139, id. 471. No doubt as a result of this, the statute imposing upon towns the duty to maintain highways and bridges was, some time before 1769, amended by adding to the clause imposing the duty the words ‘ unless * * * it belongs to any particular person or persons to maintain such bridge in any particular case’ and by changing the portion of the statute imposing a liability for injuries suffered through the defect or insufficiency of any bridge or highway to impose the penalty upon the town or the person who ought to maintain the same. Statutes, Edition of 1769, p. 17. In subsequent years the Legislature placed the burden of constructing and maintaining bridges and highways or portions of them upon various bodies, as, for example, turnpike companies, Seidel v. Woodbury, 81 Conn. 65, 72, 70 A. 58; Middletown v. New York, N.H. & H. R. Co., 62 Conn. 492, 494, 27 A. 119; street railway companies, Shalley v. Danbury & B. Horse Ry. Co., 64 Conn. 381, 386, 30 A. 135; Root v. Connecticut Co., 94 Conn. 227, 233,108 A. 506; highway or bridge districts, State ex rel. Bulkeley v. Williams, supra; and special boards or commissioner, Norwalk v. Podmore, 85 Conn. 498, 502, 83 A. 629; Johnston v. Hartford, 96 Conn. 142, 153, 113 A. 273. There is no question that if the agency upon which the Legislature imposes the duty is acting solely in the public interest, it is entitled to the immunities from liability which inhere in the performance of a governmental function. Colwell v. Waterbury, 74 Conn. 568, 572, 51 A. 530,57 L.R.A. 218; Rudnyai v. Harwinton, supra.

Where however, the duty is imposed upon and accepted by a private corporation as an incident to a franchise granted by the Legislature to it for its profit, a different situation is presented. It was early suggested in the case of a turnpike company that it might be liable for negligence in failing to keep in repair the highway in its charge. Goshen & Sharon Turnpike Co. v. Sears, 7 Conn. 86, 93. In Shalley v. Danbury & B. Horse Ry. Co., supra, the plaintiff sued for injuries suffered through a dangerous condition in a highway which the defendant, under its charter, was obligated to keep in repair; the claim was made that the requirement of notice under § 2673 of the General Statutes, Revision of 1888, now § 1420 of the Revision of 1930, would be unconstitutional as applied to a private corporation, but we held that not only was it constitutional but the notice was required in cases like the one at bar. We said, however, 64 Conn. at page 386, 30 A. at page 136, that the charter imposed a burden and a liability upon the defendant in respect to a limited portion of the highways ‘ somewhat similar in their origin and nature to the burden and liability imposed by statute upon towns and other municipalities in respect to highways,’ and specifically pointed out, 64 Conn. at page 387, 30 A. at page 135, that the complaint was one under the statute. In Bartram v. Sharon, 71 Conn. 686, 696, 43 A. 143, 146,46 L.R.A. 144, 71 Am.St.Rep. 225, after pointing out that the obligation to build and maintain necessary highways imposed upon the towns is a public governmental duty for which no action lies unless authorized by statute, we said: ‘ The rule as to a town's liability does not necessarily apply to private corporations responsible for the repair of highways. As to them, or some of them, the statutory obligation may be in affirmation of a common-law liability for negligence. [Goshen & Sharon] Turnpike Co. v. Sears, 7 Conn. 86, 93. But that question is not now involved.’ In Lavigne v. New Haven, 75 Conn. 693, 55 A. 569, where it was held that an action would lie against a street railway company under the statute for a defect in a portion of the street it was bound to repair, we were careful to point out, 75 Conn. at page 701, 55 A. at page 569, that the complaint stated no cause of action other than one under the statute. In Crotty v. Danbury, 79 Conn. 379, 382, 65 A. 147, we again pointed out that this was so as to the action then before us and the language of that opinion must be read in the light of that statement. In Cowles v. New York, N.H. & H. R. Co., 80 Conn. 48, 66 A. 1020, 12 L.R.A.N.S., 1067, 10 Ann.Cas. 481, the question at issue was the liability of the defendants for injuries which occurred when one of its trains ran into an automobile at a grade-crossing and the specific claim of the plaintiff was that the defendants were liable because of the presence of trees and shrubs upon the railroad right of way and adjoining lands which interfered with the vision of a traveler crossing the track; we said, 80 Conn. at page 54, 66 A. at page 1022, 12 L.R.A.N.S., 1067, 10 Ann.Cas. 481, that the state might have imposed duties...