Falkowski v. MacDonald

• Decision Date: 14 February 1933
• Citation: 164 A. 650,116 Conn. 241
• Parties: FALKOWSKI v. MacDONALD, Highway Com'r.
• Court: Connecticut Supreme Court

164 A. 650

116 Conn. 241

FALKOWSKI v. MacDONALD, Highway Com'r.

Supreme Court of Errors of Connecticut.

February 14, 1933

Appeal from Court of Common Pleas, Fairfield County; Samuel C. Shaw Judge.

Action by Anthony Falkowski against John A. MacDonald, State Highway Commissioner, for damages to personal property alleged to have been caused by negligence of the defendant. The case was tried to the court, and from a judgment for defendant plaintiff appeals.

No error.

Thomas R. FitzSimmons, of New Haven, for appellant.

Raymond E. Baldwin, of Bridgeport, for appellee.

HAINES, Justice.

On April 6, 1930, the plaintiff was driving an automobile on what is known as foxon Road, proceeding from New Haven toward North Brinford. He had just entered the town of East Haven and was driving on the right-hand side of the road, about thirty feet behind another car, when the latter suddenly swung to the left, but the plaintiff was unable to do so because of the approach of another car, and the wheel of his car went into a hole or depression in the roadway, and being unable to control the car, it ran off the roadway and against a stone wall and was almost completely demolished by that collision. Before running into it, the plaintiff did not see the depression, which was four to five feet in diameter and two and a half or three inches in depth. The road had been constructed of improved macadam some twenty-six years before and later had received a surfacing of tar. On the date of the accident the road was under the exclusive control of the defendant state highway commissioner, and the latter had extensive improvements in contemplation, and had moved materials and machinery to the vicinity for carrying out these plans.

The plaintiff claimed that the depression is the roadway was a defect existing therein by reason of the defendant's negligence, and this action was brought under the provisions of General Statutes, § 1481, permitting suit against the defendant state highway commissioner as the representative of the state, for damages, and the trial court found due compliance by the plaintiff with the preliminary requirements of that statute. It was further found, rather inferentially than directly that the highway was defective in the respect above indicated; that it was the sole proximate cause of the plaintiff's damage; and that the plaintiff was not guilty of any contributory negligence. Judgment, however, was given for the defendant on the sole ground that the defendant had no notice of the defect, actual or constructive, and this is the controlling question before us upon this appeal.

As we have previously had occasion to point out, the duty of maintaining state highways having been imposed upon the highway commissioner as the representative of the state, the liability for defects therein is subject to the same limitations as previously provided where the roads were controlled by municipalities. Horton v. Macdonald, 105 Conn. 356, 360, 135 A. 442; Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890. It is a prequisite of liability that the authority charged with maintenance of the highway shall have notice of the defect, actual or constructive; i. e., it must have had actual knowledge of the existence of the defect, or it must have existed for such a length of time that it would have been known in the exercise of reasonable care and a reasonable opportunity afforded in which to remedy it. Matchulot v. Ansonia, 116 Conn. 55, 163 A. 595; Meallady v. New London, 116 Conn. 205, 164 A. 391; Anderson v. Bridgeport, 111 Conn. 681, 682, 151 A. 188; Burgess v. Plainville, 101 Conn. 68, 72, 124 A. 829.

The appellant attacks the conclusion of ...