Colwell v. City of Waterbury

• Decision Date: 05 March 1902
• Citation: 51 A. 530,74 Conn. 568
• Parties: COLWELL v. CITY OF WATERBURY.
• Court: Connecticut Supreme Court

51 A. 530

74 Conn. 568

COLWELL

v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

March 5, 1902.

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

Action for personal injuries by Matthew Colwell, an employé, against the city of Waterbury. Verdict and judgment for plaintiff, and defendant appeals. Error, and new trial granted.

The complaint alleged that defendant was the owner of a stone crusher used to crush stone for macadamizing the streets of the city of Waterbury, and that defendant also sold stone crushed by such crusher at a profit; that on the 12th of July, 1894, plaintiff was in the employ of the defendant, feeding stone into said crusher, when, by reason of a broken tooth in said crusher, and of the want of a proper covering for said crusher, which defects were known to the defendant's superintendent and foreman in charge of said machine, the latter of whom had promised the plaintiff that new teeth and a proper covering would be furnished for said machine, so as to make it safe, the plaintiff was injured by a stone thrown by said machine while he was feeding the same, which struck him in the right eye and wholly destroyed the sight thereof. As a second defense, the defendant alleged that at the time of the accident it was engaged in the performance of a public duty imposed upon it by statute, in repairing certain highways within its limits by macadamizing them, which work was being done in accordance with the provisions of its charter under the superintendence of the street inspector, who had employed a foreman to take charge of the stone crusher and the crushing of the stone, which foreman, with authority from said inspector, had employed the plaintiff, who, at the time of the accident, was actually employed at such work in the town of Cheshire. The court having overruled the plaintiff's demurrer to this answer, these allegations were denied by the plaintiff's reply. Upon the trial it appeared that the stone crusher by reason of a defect in which the plaintiff was injured was owned by the defendant, and at the time of the accident was being used by the defendant in the town of Cheshire, 10 miles from Waterbury, in crushing stone to be transported by rail to Waterbury and by teams to a street which was being macadamized, and there used in macadamizing said street. The plaintiff, it appeared, was employed by the defendant's street inspector, called "Superintendent of Streets," who had the general superintendence of this work and the care and maintenance of streets, and was put to work on the stone crusher by the foreman, who, subject to the superintendent, had charge of the work of stone-crushing at Cheshire, and at the time he was injured was so employed in the work of crushing stone which the defendant intended to use, and did use, in the macadamizing of one of its streets. There seems to have been no evidence that the defendant, prior to the accident, ever sold the stone crushed by said machine, or used them for any other purpose than in macadamizing its streets. The defendant, in substance, requested the court to charge the jury that the city of Waterbury could not be held liable, by reason of any negligence on the part of its officers or servants who were in charge of the work of crushing the stone for the purpose of repairing its streets, because in doing said work the defendant was performing a public governmental duty imposed upon it by the state. The court charged the jury, in part, that the care and maintenance of its streets by the defendant was a governmental duty, and that if the preparation of the stone used in the repair of the street was work done in the performance of such governmental duty, there could be no recovery; that "the crushing of stone intended to be used and subsequently used in macadamizing a street 10 miles away was not work done in the care and maintenance of the street. Such work is confined to the work done on the street itself, or in bringing to the street the necessary materials and instrumentalities used in the work; it has no relation to the manufacture of material or instrumentality, or the use of machinery for that purpose." It is provided by an act of legislature, made a public act, that the city of Waterbury shall be a highway district; that its court of common council shall have the sole and exclusive authority and control over all streets within the limits of the city, and the sole and exclusive power to lay out and make new streets, and to alter and repair streets, and the like power to order the paving, macadamizing, or otherwise improving any street or highway within the city, and that said court of common council, upon the execution of any order for the paving, macadamizing, or otherwise improving any such street may assess a reasonable part of the expense thereof upon the persons whose property is especially benefited thereby. The act further provides for the appointment by the board of aldermen and the court of common council of a board of street commissioners, who are to have the general superintendence and control over the streets, and to cause the same to be kept in good condition and repair, and to execute all orders of said court in reference to the streets, etc., and who are empowered to employ, in the name and behalf of the city, a street inspector, a street surveyor, and such other persons as may be necessary for the performance of the duties Imposed upon said board. 7 Sp. Laws, pp. 217-219.

Lucien F. Burpee and John P. Kellogg, for appellant.

John O'Neill and George H. Cowell, for appellee.

HALL, J. (after stating the facts). The injury to the plaintiff was caused by the operating of a defective stone crusher upon which he was at work. The alleged ground of liability is the negligence of the city, or that of its street inspector, in placing the plaintiff, as an employé of the city, at work upon such defective machine. If the city, or its street inspector, in operating the stone crusher, was engaged in the performance of a public governmental duty, the defendant in the absence of any statute making it so, is not responsible in damages to the plaintiff for the injury caused by such act of negligence, either upon the theory that the city failed to perform its duty toward an employé, to provide him a reasonably safe place in which to work or reasonably safe instrumentalities with which to work, or upon the theory that the plaintiff, if not a servant of the city, was injured by the carelessness of the defendant...