Dean v. Town of Sharon

• Decision Date: 04 April 1900
• Citation: 72 Conn. 667,45 A. 963
• Court: Connecticut Supreme Court
• Parties: DEAN et al. v. TOWN OF SHARON.

45 A. 963

72 Conn. 667

DEAN et al.

v. TOWN OF SHARON.

Supreme Court of Errors of Connecticut.

April 4, 1900.

Appeal from superior court, Litchfield county; George W. Wheeler and Milton A. Shumway, Judges.

Action by Ellen Elizabeth Dean and another against the town of Sharon for injuries caused by a defective highway. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

The following is the part of the statutory notice which describes the injury sustained by Mrs. Dean, and the cause thereof, and the time and place of its occurrence: "She was tipped or thrown from said sleigh (the same upsetting), and she was thrown or fell with great force and violence upon a rock, striking upon her back, hips, head, spine, and body, and her back, hips, head, spine, and body were greatly and permanently bruised, strained, injured, and wrenched, her left hip dislocated, and she was otherwise greatly and permanently injured, internally and externally, in and upon her back, head, hips, spine, and body. The cause of said injury to the said Ellen Elizabeth Dean was the defective condition of said public highway and obstructions in or nearly therein, then and there being as follows, viz.: A ditch, gully, or excavation in, or partly in, said highway, made by a stream of water running over, along, and across the same, and of stones, rocks, and other obstructions and defects in said highway, or partly in and near the same, and while she was passing along said highway said sleigh struck a stone, rock, or hole in, or partly therein, causing the said sleigh to upset, and her to be thrown or fall out as aforesaid. The place where said injury was received, and where said defective highway causing the injuries and damages as aforesaid, was upon said highway known and called as the 'River Road,' above described, at a point about eighty feet south of a small bridge, the same being the first bridge on said highway southerly of and from the blacksmith shop of the said Theodore W. Dean, and the first bridge on said highway southerly of the highway leading from said 'River Road,' so called, and said Dean's premises, over the 'Pine Swamp Road,' so called, to the village of Sharon, in said town of Sharon. This is to notify you that the time when said injury was received was about 7 o'clock in the evening of said March 13, 1896. This is to notify you that damages for said Injuries will be claimed of said town of Sharon. Dated at Sharon, Connecticut, May 6, 1896. Ellen Elizabeth Dean, Theodore W. Dean, Plaintiffs, by J. H. Roraback, Atty." The notice was made a part of the complaint. The defendant demurred to the complaint upon the grounds that it contained no allegation that the town or its selectmen had notice or knowledge of the alleged defects; that it did not properly allege the cause of the plaintiff's injury; and that the statutory notice was insufficient. The court overruled the demurrer.

Upon the trial to the jury the plaintiff called as a witness one Holcomb, who, having testified that he had traveled over the highway in question frequently for a number of years, that he had had experience in repairing roads, and had repaired this road, and had examined it the clay after the accident, and having described its condition at that time, was asked the following question: "What would you say as to whether the highway was reasonably safe for public travel at this point at this time?" To this question the defendant objected upon the ground that the witness was not qualified, and that it was not proper to permit his opinion to the jury. The court overruled the objection, and admitted the evidence. The plaintiff introduced as a witness one Cochrane, who, having testified that he was an experienced road builder, and as selectman had had charge of the building of the roads of the defendant town, and had examined the highway in question when, as it appeared from other testimony offered by the plain-title, it was in the same condition as at the time of the accident, was asked whether at the time the witness saw the highway, in March after the accident, it was in a condition that was reasonably safe for public travel. To this question the defendant objected, upon the ground that the question was indefinite as to form; that the witness, not having seen the road before or at the time of the accident, should not be permitted to give his opinion as to its condition at the time of the accident; and that such opinion was immaterial and inadmissible. The court overruled the objection, and permitted the question. The plaintiff called as a witness Dr. Skiff, who, as a physician, treated the plaintiff after the accident. Having testified to the examination he made, and described the plaintiff's condition and his treatment of her, he was asked whether, if Mrs. Dean had been tipped from the sleigh, striking upon a rock upon her left side with sufficient force to dislocate her hip, that injury would be such as would produce the condition he then found her in. To this question the defendant objected, upon the ground that it contained elements that did not bear on this case. The court overruled the objection, and admitted the question. The defendant objected to the introduction in evidence of the notice to the selectmen upon substantially the same grounds as stated in the demurrer, and because it was not a notice of the injury concerning which the plaintiff had offered evidence. The court overruled said...