Crotty v. City of Danbury

• Decision Date: 18 December 1906
• Court: Connecticut Supreme Court
• Parties: CROTTY v. CITY OF DANBURY et al.

65 A. 147

79 Conn. 379

CROTTY

v. CITY OF DANBURY et al.

Supreme Court of Errors of Connecticut.

Dec. 18, 1906.

Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Statutory action (Gen. St. 1902, §§ 2013, 2020, 3837, 3838) by John Crotty against city of Danbury and another for injuries caused by a defect in a street From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Howard W. Taylor, for appellant. Samuel Tweedy, for appellant Danbury & B. St. Ry. Co. J. Moss Ives, for appellee City of Danbury.

HAMERSLET, J. Division street is a public highway within the city of Danbury which the city is bound to keep in repair. The Danbury & Bethel Street Railway Company maintains a single street railway track through said street, and is bound by law to keep in repair that part of Division street between the rails of said track and for a distance of two feet on each side. On the evening of December 12, 1903, there was on the surface of said Division street on the eastern part of the carriage way a small shallow hole caused by a break in an underground water pipe, and on that evening John Crotty, the plaintiff, stepped into this hole and was thrown down and injured. The plaintiff brought this action to recover damages for his injuries thus received, and made the city and the railway company defendants. The complaint alleged the legal duty of the defendant city to keep said Division street in repair, and also the legal duty of the defendant railway company to keep in repair that portion of Division street within the rails of its track and for two feet on each side, and claimed damages "by force of the statute in such cases made and provided." Each defendant filed a separate answer denying material allegations of the complaint The case first came to trial to a jury at the April term, 1905, of the court of common pleas. At the trial, after the plaintiff had produced all his evidence and rested his cause, the defendant street railway company moved for a judgment against the plaintiff as in case of nonsuit. This motion was granted, and a judgment as in case of nonsuit was entered in favor of the defendant street railway company against the plaintiff on April 27, 1905. On the same day the plaintiff filed a motion to set aside the judgment of nonsuit This motion was heard and denied on April 6, 1906. The denial of the motion to set aside the nonsuit is assigned as error.

It plainly appears from the evidence reported that the plaintiff produced no evidence from which a jury could find that the defect in the highway alleged as the cause of the plaintiff's injuries was within that portion of the highway which the defendant railway company was bound to keep in repair. There was no cause of action alleged against the defendant railway company except one based upon its failure to perform its statutory duty of repairing the highway within the prescribed limits. The failure of the plaintiff to produce any evidence of the existence of a defect within the prescribed limits was necessarily a failure to make out a prima facie case, and the court properly granted the motion for a nonsuit Wallingford v. Hall, 64 Conn. 426, 430, 30 Atl. 47; Beckwith v. Farmington, 77 Conn. 318, 321, 59 Atl. 43. The defendant railway company owed no duty to the plaintiff in respect to the repair of the highway except the specific duty imposed upon it by statute. In such case no duty and no liability exists that is not imposed by statute. Lavigne v. New Haven, 75 Conn. 693, 696, 55 Atl. 569. There is no ground for the plaintiff's further claim that, in the special statutory action authorized by section 3838, Gen. St. 1902, against the street railway company and the municipality on account of a defect in that portion of a highway which the former is bound to keep in repair, a judgment as in case of nonsuit in favor of the railway company is void because in such an action such a judgment can only be rendered in favor of both defendants. This is a very peculiar statutory action, and. so far as we know, the present suit is the first action brought on the statute since its passage in 1893. The action is primarily one against the street railway company for the purpose of enforcing its liability and of doubtful use to a plaintiff when there is no question as to the responsibility of the railway company. Lavigne v. New Haven, 75 Conn, 693, 55 Atl. 569. The street railway company, upon failure of the plaintiff to make out a prima facie ease against It, is clearly entitled to a nonsuit in pursuance of section 761 of the General Statutes of 1902. Even if the ground on which the nonsuit were granted would justify a like judgment in favor of the other defendant, the plaintiff has no ground of complaint because he was not nonsuited as to both defendants. He was not thereby obliged to pursue his action against the other defendant, but, having pursued it and tried the cause upon its merits, he is bound by the judgment. When said judgment of nonsuit was rendered, the defendant city of Danbury also moved for a judgment as of nonsuit in its favor against the plaintiff, which motion the court denied. The denial of such a motion is wholly within the court's discretion. Then said city moved for a continuance of the cause, upon the ground that it had come into the trial as one of an action primarily against the street railway company, under Gen. St. 1902, § 3838, and only incidentally against the city of Danbury, and that it was not then properly prepared to try the action as one against the city for a defect in the portion of the highway under its care. The court, after hearing counsel only, and in the exercise of its discretion, granted said motion, to which the plaintiff excepted. Granting or refusing the motion to continue was a matter within the discretion of the court notwithstanding a continuance would necessarily involve the discharge of the jury. Shaler & Hall Quarry Co. v. Campbell, 53 Conn. 327, 329, 2 Atl. 755: White v. Portland, 63 Conn. 18, 19, 20, 26 Atl. 342. The action of the court in granting this motion is not a sufficient reason for appeal.

The plaintiff's motion to set aside the nonsuit granted in favor of the defendant railway company having been denied on April 6, 1906, the plaintiff on the 9th day of the same month, with the consent of the defendant city, amended his complaint by alleging that the defendant city had, for an unreasonable length of time prior to the time when the plaintiff received his said injuries, allowed said defective condition of the highway to exist and had unreasonably neglected to either repair said defect or safeguard public travel thereat Upon the complaint against the defendant city as thus amended, the plaintiff and defendant city tried the cause to a jury.

The reasons of appeal assign error in the rulings of the court as to the admission of evidence in its failure to charge specifically in accordance with written requests of ...