Gustafson v. City of Meriden

• Decision Date: 23 December 1925
• Citation: 131 A. 437,103 Conn. 598
• Court: Connecticut Supreme Court
• Parties: GUSTAFSON v. CITY OF MERIDEN.

131 A. 437

103 Conn. 598

GUSTAFSON v. CITY OF MERIDEN.

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Superior Court, New Haven County; L. P. Waldo Marvin Judge.

Action by Ernest G. H. Gustafson, administrator, against the City of Meriden. Judgment for plaintiff, and defendant appeals. Error, and new trial ordered.

William M. Luby, of Meriden, for appellant.

Cornelius J. Danaher, of Meriden, for appellee.

KEELER, J.

This action was tried to the jury to recover damages for the death of plaintiff's intestate by reason of the defect hereinafter described in Cook avenue, a public highway in defendant city. The plaintiff offered evidence to prove, and the jury might reasonably have found, that the plaintiff's intestate was in the occupancy of the side car of a motorcycle which was driven by one Johnson on Cook avenue, at 4 a. m. on June 22, 1924; that on the traveled surface of this highway three large holes had existed for an unreasonable time, rendering the highway unsafe for public travel; that it was at this point unprotected by lights barriers, or any sort of warning; that neither the intestate nor Johnson had any knowledge of the defective condition of the highway; that because of these defects both of them were thrown from the vehicle, and the intestate received injuries from which he died on the same day; and that plaintiff thereafter took out administration on the estate of the deceased. The jury returned a verdict for $7,500 damages for the plaintiff, which the trial court refused on motion to set aside. Defendant appealed from this decision of the court, but this ground of appeal was not pressed in argument. Defendant further appeals from the admission of certain testimony, from the failure of the court to give three certain instructions, and because of three certain instructions given.

Wilmot H. Benn, a witness for the plaintiff, testified without objection upon the condition and state of repair of the roadway below the place where the injury occurred, and was then asked, " Do you recall a single bad portion of the highway between Hartford and New Haven other than this particular stretch of roadway?" To this question objection was made, and, upon inquiry by the court whether the question was claimed to be pertinent upon the question of warning to the driver of the vehicle, counsel for plaintiff replied, " No, no; if your honor please. It has a bearing upon the question of care, the uniform good condition of the roadway above this point and below this point, in contrast with this 100 yards or so of concrete." The question was admitted and answered, " No; I don't," and exception taken. Evidence of the condition of the highway at places other than the place of injury is not admissible. Cunningham v. Fair Haven, etc., R. R. Co., 72 Conn. 244, 249, 43 A. 1047; Bliss v. Wilbraham, 8 Allen (Mass.) 564; L. & N. R. R. Co. v. Fox, 11 Bush (Ky.) 505; White on Negligence of Municipal Corporations, 988. At times testimony as to the condition of parts of the highway immediately adjacent to the part in question has in some jurisdictions been admitted as showing some peculiarity of condition or construction; but the comprehensive question just quoted, relating to the quality of the roads from New Haven to Hartford, has neither relevancy nor materiality. That an excellent road existed in Wallingford or Berlin has no bearing whatever upon the nature and extent of the disrepair of a strip of street in Meriden, or upon the care required of one making use of the strip where the injury occurred. The question and answer could have had no other effect upon the jury than to improperly prejudice them against the defendant as regards the maintenance and repair of the highway, without throwing any light upon the particular transaction in question or its physical surroundings. The instruction could hardly fail to be extremely harmful to the defendant. The admission of the testimony was erroneous.

C. Perry Prann, city engineer, was called by the defendant as a witness and questioned as to the layout of Cook avenue, and the material used in its construction. As to these matters he was cross-examined with considerable particularity, stating without objection, among other things, that approximately 500 feet of Cook avenue near the scene of the injury had since the time of the injury, been resurfaced with sheet asphalt. He was then asked the question, " Now will you indicate upon the map where the 500 feet of sheet asphalt is?" To this last question objection was made on the ground of the immateriality of the evidence sought to be produced, that no time when the work was done had been stated, and it certainly was too remote. Plaintiff's counsel then asked the witness to fix the time, and he answered that it was in August, 1924. The objection was then renewed on the same grounds, and defendant's counsel claimed the line of inquiry as proper cross-examination, since the fact of the change in the surface had been brought out on direct examination. The trial judge stated that such was his recollection, admitted the question and answer, and exception was duly taken. It does not appear in the finding whether the matter had been opened on the direct examination, and the finding in that regard is incomplete. The evidence can therefore be inspected to supplement this omission ( Friedler v. Hekeler, 96 Conn, 29, 34, 112 A. 651), and we find in the report of this witness' direct examination that it appears that the witness was asked, after he had stated the condition of the pavement on the day of the injury, " Is it the same now as it was then?" Against the objection of plaintiff's counsel, the witness replied, " It is not the same." The counsel for defendant now claims that this testimony was inadmissible, since evidence of subsequent repairs was incompetent to show the condition of affairs at the time of the injury. This is very familiar law, and we need not cite authorities in its support. Such testimony is highly objectionable. However, in view of the fact that the subject of change in the road was touched upon, although lightly in the direct examination, that in the earlier part of the cross-examination the fact of repairs to the road was gone into at some length before objection, and that the ground of objection stated at the trial was not that insisted on in brief and argument, and that no motion was made to strike out the testimony which had been given in the cross-examination before the first question objected to was asked, we cannot say that the admission of this evidence was harmful or the action of the court reversible error.

The remaining reasons of appeal are concerned with the court's refusal to give certain instructions asked for, and in giving certain other instructions claimed to be erroneous. All of these questions hinge upon and relate back to the statutory liability of defendant. This action was not one of negligence, but one upon the statute (Gen. St. 1918, § 1414) which provides:

" That any person

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