Flynn v. Town of West Hartford

• Decision Date: 18 October 1922
• Citation: 98 Conn. 83,118 A. 517
• Court: Connecticut Supreme Court
• Parties: FLYNN v. TOWN OF WEST HARTFORD.

118 A. 517

98 Conn. 83

FLYNN v. TOWN OF WEST HARTFORD.

Supreme Court of Errors of Connecticut.

October 18, 1922

Appeal from Superior Court, Hartford County; William M. Maltbie Judge.

Action by George Flynn against the Town of West Hartford to recover damages for injuries suffered by plaintiff in driving his automobile into an alleged defect in the traveled way of a highway of defendant. Verdict for plaintiff and motion to set verdict aside denied, and appeal by defendant. No error.

John T. Robinson and Carlyle C. Thomas, both of Hartford, for appellant.

Jacob Schwolsky and Frederick J. Rundbaken, both of Hartford, for appellee.

PER CURIAM.

The jury might have reasonably found that the plaintiff in the daytime drove his automobile into a pile of sand and earth and an excavation located upon the traveled way of a highway in defendant town made by it in repairing or altering a water main and left by it without adequately guarding it; that the excavation was about 3 feet wide and 3 1/2 feet deep and began 2 feet from the curb, and the sand and earth thrown up from the excavation extended on either side 1 9/10 feet beyond the excavation and to a height of 1 foot. In the argument of this appeal the defendant relied upon three points:

1. That, concededly, defendant was engaged upon a governmental duty; therefore the excavation and piles of sand and earth did not make the highway defective within the meaning of General Statutes, § 1414. Repeated decisions of this court and an unvarying construction of this statute since its enactment in 1672, adverse to this claim, make the attempt to now question it futile and its rediscussion unneeded. State v. Towers, Street Commissioner, 71 Conn. 657, 666, 42 A. 1083. Aside from the liability under the statute, the defendant would be liable under the common-law rule for an injury proximately resulting from the presence upon the highway of this pile of sand and earth and excavation, because it was responsible for their existence it made the excavation, it piled up the sand and earth, and it left them inadequately guarded. Of a similar situation we said in Danbury & Norwalk R. Co. v. Town of Norwalk, 37 Conn. 119:

" The question whether such a corporation as the respondent, in consequence of any immunity inherent in its municipal character, is exempt from those liabilities for malfeasance for which individuals and private corporations would be liable in a civil action by the party injured, is no longer an open one. The acts, of the character of those now in question, involved in the necessary performance of a duty prescribed by a municipal ordinance, are strictly ministerial, and when performed by an officer or agent by direction and for the

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