Hickey v. Town of Newtown

• Decision Date: 09 May 1963
• Citation: 192 A.2d 199,150 Conn. 514
• Court: Connecticut Supreme Court
• Parties: Thomas HICKEY et al. v. TOWN OF NEWTOWN et al. Supreme Court of Errors of Connecticut

Page 199

192 A.2d 199

150 Conn. 514

Thomas HICKEY et al. v. TOWN OF NEWTOWN et al.

Supreme Court of Errors of Connecticut.

May 9, 1963.

Paul V. McNamara, Bridgeport, with whom was Seth O. L. Brody, Bridgeport, for appellant (named defendant).

Philip Reich Bridgeport, for appellees (plaintiffs).

Before BALDWIN, C. J., and KING, MURPHY, SHEA, and ALCORN, JJ.

ALCORN, Associate Justice.

The plaintiff Thomas Hickey and his thirteen-year-old daughter, the plaintiff Kathleen, were injured when they were struck by an automobile driven by Gerard D. Golden while they were walking along Riverside Road in Newtown. They brought this action against the defendant driver, alleging his negligence, and against the defendant town, alleging a defect in the highway. The jury returned a verdict in favor of both plaintiffs against the town only and, in answer to an interrogatory, expressly found that Golden was not negligent. The town's motion to set aside the verdict was denied, and the town has appealed from the judgment, assigning error in the charge, in rulings on evidence and in the denial of its motions for a directed verdict, for a judgment notwithstanding the verdict and to set aside the verdict. Fourteen assignments of error in the finding are expressly abandoned, and four others do not merit consideration.

There was evidence from which the jury could have found that on August 3, 1956, about 9:25 p. m., the plaintiffs were walking easterly along the southerly side of Riverside Road, keeping about a foot and a half from the highway fence on that side. The road is a blacktop, eighteen-foot wide public road which it is the town's duty to maintain. At the north side of the road, there is an embankment with about a 60 percent grade. On the south side, where the plaintiffs were walking, loose sand and gravel covered about two feet of the pavement near the edge. This sand and gravel, which the town had never attempted to remove, had accumulated from sanding operations on the road during the winter. The sand and gravel had a tendency to cause a car to skid when the brakes were applied. The weather was clear, the road was dry, it was dark and there was no moon. There were no street lights, warning signs or reflectors in the area. As one proceeded easterly, the road curved to the left on a variable 3.7 percent downgrade. As the plaintiffs walked along the road, the Golden car overtook them at a speed of about thirty to thirty-five miles per hour. The driver saw the pedestrians in the road ahead of him, applied his brakes and turned his steering wheel to the left to pass them. The sand and gravel on the road caused his car to skid to the right, and Golden lost control of it. The car sideswiped the fence and then struck the plaintiffs, causing the injuries complained of. The plaintiffs alleged that the presence of the sand and gravel on the pavement, under the other conditions described, constituted a defect in the road. The evidence was sufficient to go to the jury on the issue of a defective road, and the court was correct in refusing to direct a verdict or to set aside the verdict and render judgment notwithstanding the verdict. Robinson v. Southern New England Telephone Co., 140 Conn. 414, 420, 101 A.2d 491; Conti v. Brown, 149 Conn. 465, 467, 181 A.2d 591; Deveaux v. Spekter, 150 Conn. ----, 190 A.2d 484.

The complaint also alleged that the highway was defective, apart from the defect consisting of the presence of the sand and gravel on the pavement, because the highway was narrow and crooked, afforded no safe place on either side for pedestrians to walk, was not properly graded or banked, and had no signs warning motorists of the curve. The charge is tested by the claims of proof in the finding. Pischitto v. Waldron, 147 Conn. 171, 176, 158 A.2d 168; Maltbie, Conn.App.Proc. § 145. The plaintiffs' claims of proof, beyond the description of the physical layout of the highway already alluded to, were that the accumulation of loose sand and gravel encroached two or two and one-half feet onto the paved portion of the roadway, the edge of which was a foot or a foot and a half from the fence; that this accumulation had resulted substantially from the sanding of the road by the town during the previous winter; that the road had been in the same condition for some months; and that the town had actual notice of the condition during all that time. The plaintiffs claimed further to have proved that the town had made no effort to remove or control the accumulation and that the town had created a dangerous condition, the effect of which was to cause automobiles rounding the curve in an easterly direction to skid when the brakes were applied. The plaintiffs claimed also to have proved that Golden saw them before his car struck them, that he was then traveling with the right side of his car about two feet from the fence on his right, so that his right wheels were on the sand and gravel on the pavement, that his tires were new and his brakes in good condition, and that when he saw the plaintiffs he applied his brakes and turned his steering wheel to pass to the left around...