Cummings v. City of Hartford

• Decision Date: 30 November 1897
• Citation: 38 A. 916,70 Conn. 115
• Court: Connecticut Supreme Court
• Parties: CUMMINGS v. CITY OF HARTFORD.

38 A. 916

70 Conn. 115

CUMMINGS

v. CITY OF HARTFORD.

Supreme Court of Errors of Connecticut.

Nov. 30, 1897.

Appeal from superior court, Hartford county; William T. Elmer, Judge.

Action by Sarah Cummings against the city of Hartford to recover damages for personal injuries caused by a defective highway, and heard in damages to the court, after defendant had suffered a default. Facts found, and judgment rendered for the plaintiff for $800 damages, and appeal by the defendant for alleged errors in the rulings of the court. No error.

The finding stated the following facts: The owner of a lot on Albany avenue, in the city of Hartford, without any order or authority from the city, employed a contractor to replace a flag sidewalk in front of his lot by a granolithic one. The contractor began work early on August 13th, and stopped for the night at 6 p. m., leaving an excavation in the walk, from which the old flagging had been removed, 50 feet long, 5 feet wide, and 3 feet deep, adjoining the curbstone. An inner rim of the old sidewalk was left untouched, which was 3 or 4 feet wide. At each end of the excavation, a plank, upon which a barrel was placed, was laid from this rim to the curb. The city charter and ordinances made it a misdemeanor to make any excavation in any street without a permit from the board of street commissioners, and a nuisance to make one without also protecting the public against danger "by means of fences, lights, and any other precautions expedient or necessary for such protection." No such permit was obtained for this excavation. The city ordinances authorized any police officers of the city to keep all streets free from obstruction, and to require all persons whom they might see unlawfully obstructing them to desist therefrom, and particularly provided that policemen "shall especially attend to the keeping of the streets and sidewalks of the city clear of all unlawful obstructions, and shall report to the chief of police, through the captain, all unlawful obstructions thereof, who shall take immediate steps to remove the same." There was also a standing rule of the police department as follows: "Rule Concerning the Duties of a Policeman. If he discovers any defect in the sidewalk or streets, large stone, or other obstruction upon the street, liable to produce inconvenience or injury, be shall remedy or remove the same; or, if that is not possible, he shall take such measures as the case may require to prevent injury to the public, and immediately report the same to the chief of police." Early in the morning of the day on which the excavation in question was begun, a police officer, about to go on duty near said premises, noticed that the excavation was in progress, but made no inquiry as to whether a permit had been obtained for the work from the street board, as required by law. At about 7 o'clock in the evening of that day, when going off duty, he met the officer then going on duty on the same beat, and called the attention of the latter to the excavation in question, and its apparently dangerous character as to foot passengers, and suggested to him the propriety of providing suitable protection to guard them against injury which might result from the same. Said officer then on duty proceeded to the place in question, and found the excavation as above described. He procured lanterns, which were lighted, and placed, one upon the plank at the east end, and one upon the plank at the west end, of the excavation. No further steps were taken to guard the public from accident at this place. The officer proceeded to the discharge of his duty upon his beat, and thereafter paid no further attention to the said excavation until after the accident complained of. About 25 feet easterly from the excavation, at the time of the accident, stood two shade trees, whose foliage cast a shadow over and into the ditch at its eastern end, and to a considerable extent obstructed the light from an electric lamp situated about 225 feet east of the excavation. There was at that time no other source from which light was thrown upon the excavation, excepting a light from a store at the western extremity of the same, which was of no assistance or protection to persons approaching it from the east. The night was dark, and the small light at the corner of the eastern end of the ditch offered little, if any, protection to the pedestrians approaching this place from the east. Albany avenue at this place is a crowed street, being near Main street, and many pedestrians pass over it in the night season. At about half past 8 or 9 o'clock in the evening of the day in question, the plaintiff, Sarah Cummings, having returned to Hartford after an absence of several days, and unaware of the excavation, in company with her sister, was proceeding along said street, approached the excavation at its eastern end, and walking by this point, along the remaining portion of the flag walk, advanced a short distance by the side of the ditch, when she fell in, followed by her companion. Neither at the side of the excavation where the plaintiff fell, nor at any point on the entire length of the side, was there any railing, board, or other barrier to protect pedestrians upon the said walk. The provisions made by the police officer in question, by placing a lantern with dim lights at the ends only of the excavation, without any protection at the side, on a dark night, in a crowded street, where persons were constantly passing at that time in the evening, were inadequate properly to protect the public. The court found that this excavation, under the circumstances, constituted a dangerous defect in the said public street, and that the city of Hartford was guilty of negligence in not providing adequate protection for the public against injury from the same. The plaintiff, at the time of the accident, was in the exercise of ordinary care and prudence, and was not...