Frechette v. City of New Haven

• Decision Date: 23 February 1926
• Citation: 132 A. 467,104 Conn. 83
• Court: Connecticut Supreme Court
• Parties: FRECHETTE v. CITY OF NEW HAVEN.

132 A. 467

104 Conn. 83

FRECHETTE v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

February 23, 1926

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

Action by Anna Frechette against the City of New Haven, under the statute, to recover damages for personal injury from a fall on a defective sidewalk. Verdict for plaintiff, and defendant appeals. No error.

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

David M. Reilly and Frank W. Daley, both of New Haven, for appellee.

WHEELER, C.J.

The defendant moves to set aside the verdict, and bases its motion upon two grounds: (1) That the verdict is excessive (2) that the evidence shows there were two causes concurring to produce the plaintiff's fall upon this sidewalk, the underlying ice and the freshly fallen snow covering the ice and that the jury could not on the evidence have determined which of these was the proximate cause of the plaintiff's fall without indulging in speculation and conjecture. The trial court, in reviewing the verdict, said it was large, but not excessive. We concur in this characterization, and are of the opinion that the case is one where the judgment of the trial court is entitled to great weight.

In passing upon the defendant's claim that there were two causes which concurred to produce plaintiff's injury resulting from a defective sidewalk, and therefore the municipality is not liable, we should have before us, in brief form, the facts which the jury might reasonably have found to have been proven upon which this claim must be tested. Central avenue, at the place the plaintiff fell, was one of the streets for whose care and maintenance the defendant was responsible. It was at this place a muchtraveled thoroughfare, and located in a thickly settled part of the residential section of New Haven. On February 6, 1923, about 50 per cent. of the concrete sidewalk in front of 358 Central avenue was covered with ice and frozen snow, and in a dangerous condition for travelers thereover, and this condition had existed for over a week prior to this date, and during this period no part of this ice and snow was covered with sand, ashes, or other protection. The defendant ought to have known of this condition, and had a reasonable time thereafter to remedy it. For three days prior to the date of the accident the highest temperature had been 24° F. From January 28th no snow had fallen, until a light snow began to fall between 5 and 6 o'clock on February 6th, and up to 7:30 p. m. this sidewalk had been covered with about one-half an inch of freshly fallen, light, and fluffy snow. At about 7:30 p. m. of this day the plaintiff, while walking as a traveler upon this sidewalk, in the exercise of due care, and having no notice of the ice and frozen snow beneath the freshly fallen snow, slipped on a large patch of ice and old frozen snow beneath the freshly fallen snow, and suffered severe physical injuries, part of which are permanent. Upon the evidence the jury might reasonably have found that the freshly fallen snow was not a contributing cause of the plaintiff's injury, but that the icy condition of the sidewalk was the sole proximate cause of her fall, and hence the claim of two concurring causes producing the injury would disappear. The same conclusion must be reached if the freshly fallen snow is regarded as a contributing cause of the fall.

The defendant places its contention upon the doctrine announced by us for the first time in Bartram v. Sharon, 43 A. 143, 71 Conn. 686, 46 L.R.A. 144, 71 Am.St.Rep. 225, that no action lay at common law for an injury to a traveler upon a highway, since its maintenance and care were governmental functions, but that our statute had imposed a penalty upon the municipality, measured by the actual injury caused by its disobedience of the statute, and enforceable by the person injured through an action on the statute and not as an action of negligence. The statute first enacted in 1672, now General Statutes, § 1414, provides:

" Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; but no action shall be maintained against any city," etc., " unless written notice be given," etc.

The concurring events upon which the municipality's liability to the penalty fixed by the statute as interpreted by us we state to be:

" 1. A defect in the highway, i.e., by want of sufficient repair it is unfit for safe use as a highway. 2. A failure or neglect by the town to make such sufficient repair; involving the questions of reasonable notice and knowledge, and reasonable time. 3. An injury caused through or by means of the defect. 4. Such injury to a person ‘ in passing over a highway,’ i.e., while in the lawful use of the way." Bartram v. Sharon, supra, at page 694 (43 A. 146).

The duty of the municipality is to maintain its streets in a reasonably safe condition for travelers thereon; the care required obviously being greater over the sidewalk than over the traveled way. The state and its agency, the municipality, fulfills its entire duty under the statute when it makes " the highway reasonably safe in view of its proper use, and of those events which may naturally be expected to arise as incident to that use by the traveling public." Upton, Adm'r, v. Windham, 53 A. 660, 662, 75 Conn. 288, at page 292 (96 Am.St.Rep. 197). The traveler upon the highway is the only person who can maintain an action for the recovery of the penalty provided by this statute and he only for an injury which is the direct result of a defect in the highway suffered by him when he was in the proper use of the highway, in relation to those conditions " naturally incident to its use, and which naturally expose the traveler to danger when happening where the highway is not in a reasonably safe condition." Upton, Adm'r, v. Windham, supra. Neither the state nor its agency, the municipality, undertakes to make the highway reasonably safe " in view of culpable negligence by the traveling public, whether it be that of the person hurt or his fellow traveler, nor to make it safe in view of every event that may possibly happen." The reason, we say in Bartram v. Sharon, at page 695 (43 A. 146)--

" why a person injured through his own carelessness cannot maintain an action against the town is that the injury caused by his own carelessness is not through or by means of the defect. This reason applies with equal force when the injury is caused through the carelessness of a third person."

If an accident be a partial cause of the injury, it cannot in most cases be said that the accident was the essential cause of the injury. When the accident bears this relation to the injury, the traveler cannot maintain an action under this statute. " Almost every injury," we say in Bartram v. Sharon, at page 697 (43 A. 146), " from a defect in a highway, which is not induced by wrongful human agency, must to some extent be the result of accident. The words of the statute, while their meaning ought not to be extended, must receive a reasonable construction. The exclusion of every injury in which the law of chances plays any part would hardly be reasonable." Where a horse upon a highway ran away, and by reason of a defect in the highway one was injured as a result of the defect and the accident of the horse runing away, the court held that the municipality would be liable, provided the injury would not have been sustained but for the defect in the highway. Vogel v. West Plains, 73 Mo.App. 588; 4 Dillon on Mun. Corp. (5th Ed.) § 1698. Dillon, at section 1698, states the general rule to be:

" The defect in the highway or street, whether it be snow and ice or whatever its nature, must be the direct and proximate cause of the special damage for which the corporation is made liable."

We have not had before us the specific case of a defect in the highway concurring with a natural cause to produce the injury, as in this case the defect in the highway claimed to have concurred with the light fall of snow upon the icy sidewalk just prior to the plaintiff's fall in producing it. The same principle applicable in the case of an accident concurring with a defect in the highway to produce an injury is applicable in the case of a defect concurring with a natural cause to produce the injury. In most instances of defect combined with natural cause to produce an injury the natural cause cannot be held to be " so direct and separate in its operation that the defect in the highway cannot be said to have been the essential cause of the injury." But in the exceptional case it may be. If the injury would not have occurred but for the natural cause, the defect cannot be held to have produced the injury, nor can it be held to have been the essential cause of the injury. Wherever the defect is the proximate cause of the injury, the natural cause cannot be held to be a concurring cause in any sense other than that it contributed to the injury as an incidental and remote cause.

In Lueking v. Sedalia, 167 S.W. 1152, 180 Mo.App. 203, 208, the stepping stones forming the crosswalk upon a street were covered with a light coat of newly fallen snow, and were imminently dangerous to travelers. The defendant municipality argued that the newly fallen snow and not the defective state of the stones was the proximate cause of the injury to the plaintiff traveler across this crosswalk. The opinion holds:

" The rule is well settled that a city is not liable for injuries resulting from the general slipperiness of its streets or sidewalks occasioned by a recent precipitation of rain or snow, * * * but it is liable in all cases where its own negligence is the sole cause of the injury or concurs with a natural

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