Dunn v. MacDonald

• Decision Date: 25 July 1929
• Citation: 147 A. 26,110 Conn. 68
• Court: Connecticut Supreme Court
• Parties: DUNN v. MACDONALD, STATE HIGHWAY COMMISSIONER.

147 A. 26

110 Conn. 68

DUNN v. MACDONALD, STATE HIGHWAY COMMISSIONER.

Supreme Court of Errors of Connecticut.

July 25, 1929

Appeal from Superior Court, New Haven County; John Rufus Booth Judge.

Action by Stanley Dunn, administrator of the estate of Catherine O Barmmer, deceased, for personal injuries and death, against John A. MacDonald, State Highway Commissioner. Judgment for plaintiff after trial to court, and defendant appeals. No error.

James W. Carpenter, of Hartford, for appellant.

William T. Holleran, William L. Hadden, and Stanley Dunn, all of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

HAINES, J.

The complaint in this action alleges in effect that on February 7, 1928, the plaintiff's decedent, Catherine O. Barmmer, of Bridgeport, was a passenger in an automobile driven by her husband upon the state trunk line highway between Beacon Falls and Naugatuck, and near midnight, when about half a mile south of Naugatuck Center, the automobile went through an aperture in the fence over and down an embankment into the Naugatuck river, causing the death of the decedent by drowning; that this highway was under the care, control, and supervision of the defendant state highway commissioner, and at the point in question was in a slippery and dangerous condition, and not reasonably safe for travel; that the defendant had failed to maintain a sufficient fence under the requirements of the statute, but that it was in a broken and dangerous condition, and had been for a long period, and, as such, had caused injury to persons traveling upon the highway; that the defective condition of both roadway and fence was known, or should have been known, to the defendant, his servants and agents, and that they had failed and neglected to remedy these conditions, and no signs or warnings were given or precautions taken to prevent injury to travelers from such defective conditions. It was further alleged that the decedent's injury and death were caused solely by the " carelessness and negligence" of the defendant, his servants and agents, and that the decedent was free from contributory negligence.

The defendant met these allegations by a general denial and without the interposition of a demurrer, motion for a more specific statement, or other pleading. Upon this appeal from a plaintiff's judgment, the defendant now argues that the complaint sounds in tort, in whole or in part, and thus renders the judgment void, because such an action does not lie against the state, and that, if the judgment is based upon the statute, it is illegal as being outside the issues.

The complaint exhibits a failure to recognize clearly the distinction which we have heretofore pointed out between liability for damages from negligence and liability for a penalty for breach of the statute, Rogers v. City of Meriden, 109 Conn. 324, 146 A. 735; Upton v. Windham, 75 Conn. 288, 292, 53 A. 660, 96 Am.St.Rep. 197. Since the defendant chose to join issue without any attempt to clarify the complaint, we must give it a reasonably comprehensive construction in determining whether the issues created by a general denial can support the judgment. Mezzi v. Taylor, 99 Conn. 1, 9, 120 A. 871; Simeoli v. Derby Rubber Co., 81 Conn. 423, 430, 71 A. 546; Anderson v. United States Rubber Co., 78 Conn. 48, 52, 60 A. 1057; Lovejoy v. Isbell, 73 Conn. 368, 374, 47 A. 682; Davis v. Guilford, 55 Conn. 351, 354, 11 A. 350.

As thus construed, there can be found one issue as to whether the road was defective within the meaning of the statute, and a second as to whether the defendant maintained such a railing or fence as the statute required. One or both of these issues, properly found for the plaintiff, must be held sufficient to support the judgment, whatever irrelevant matter may otherwise appear in the complaint. It is in fact to these two issues that the arguments and briefs of counsel are chiefly directed.

This appeal attacks five paragraphs of the finding on the ground that there is no evidence to support them. A thorough study of the record, however, discloses some evidence in support of each of these facts which are affirmatively found, while reasonable inference from other evidence justifies all the facts not specifically testified to. The appellant desires that we add to the finding certain statements in the draft finding on the ground that they are supported by undisputed and admitted evidence. Our examination discloses that many of the statements thus sought to be added are not so supported; others are of no particular materiality in our view of the controlling questions raised by the appeal; and several of them are already contained in the finding as made by the trial court. The request for these corrections cannot be granted.

The more important of the facts disclosed by the finding are that the decedent was riding in a six-cylinder Nash coach, driven by her husband, between Beacon Falls and Naugatuck. Her husband was an experienced driver, and the tires, brakes, and headlights of the car were in good condition. Proceeding along this cement road at 25 to 30 miles per hour, the driver noticed, when within about 300 feet of the place of the accident, that the road was slippery, and so reduced the speed to 15 miles. Continuing another 100 feet on the right-hand side of the road, the car began to skid on the icy surface of the road so the driver could not control it, and it swung north, then west, and almost completely around, and went through an opening in the fence, tipping the car over, and breaking two fence posts with the sections of rail attached at a point just north of that where another car had skidded into and broken the fence that afternoon. The decedent's car went down a 34 foot bank into the Naugatuck river, causing the death of the decedent by drowning. About a half hour later another car skidded on the ice and went through the same opening into the river, and came to rest directly in front of the car of the decedent. The cement roadway at this point was 21 feet 11 inches wide, with a shoulder on each side. A high hill was on the east side, which sloped to the west, and the cutting of the road made a tall perpendicular cliff or rocks on the east, while on the west was a steep bank running sharply down to the surface of the water. The road at and near this point curves east, then west, then east again around the cliff at a slight upgrade, and then descends a considerable distance at a slight grade. At this point, and in the immediate vicinity, the roadway was more frequently icy than at other points, owing to the conditions existing there. With all this the defendant's servants and agents were familiar.

For about three years, and on the night in question, the only barrier between the roadway and the river was a fence which at this point was 2 feet 7 inches west of the westerly edge of the cement. This fence was of wooden posts 6 to 8 inches in diameter, set in the ground 8 feet apart with a 45 degree cut at the top, to which was nailed a 2 by 6 inch wooden rail 16 feet long, and another rail of the same size was nailed to the posts halfway between the upper rail and the ground. This was the type of highway fence then in general use in this state. It was not strong enough to withstand the impact of a car like that of the decedent going 15 miles per hour, or a quiescent load of 1,000 pounds. On the day in question a light rain or mist fell during the afternoon and evening, making the surface of the roadway wet, but ice did not form except at the depression in question and at others of a similar sort on other portions of the road. This road and fence were in charge of a foreman, whose duty it was to see that both were kept in the condition required by law. This foreman and his assistants were aware of the susceptibility to ice of this particular depression in the roadway, and they knew that it was in that condition on the day in...