Horton v. MacDonald

• Decision Date: 16 December 1926
• Citation: 135 A. 442,105 Conn. 356
• Court: Connecticut Supreme Court
• Parties: HORTON v. MACDONALD, STATE HIGHWAY COMMISSIONER, ET AL.

135 A. 442

105 Conn. 356

HORTON v. MACDONALD, STATE HIGHWAY COMMISSIONER, ET AL.

Supreme Court of Errors of Connecticut.

December 16, 1926

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

Action by Clarissa A. Horton against John A. MacDonald, State Highway Commissioner, and others, to recover damages for personal injuries incurred through the negligence of the defendant, State Highway Commissioner, brought to the Superior Court in Hartford County and tried to the court. Judgment for the plaintiff for $25,000, and appeal by defendant. No error.

Joseph F. Berry, of Hartford, for appellant Highway Commissioner.

Hugh M. Alcorn and James E. Cannon, both of Hartford, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HINMAN, and SIMPSON, JJ.

WHEELER, C.J.

The appeal of the highway commissioner is limited, practically to two grounds: (1) That the commissioner was not negligent in having failed to have erected and maintained a railing or fence at the point of accident in South Main street, Windsor Locks, for the reason that the law imposed no such duty upon him. (2) That the finding when corrected in the particulars as claimed by the appellant would show, as matter of law, that the negligence of the driver of the automobile materially contributed to the injuries for which plaintiff sues. Neither ground can be disposed of without having before us the material facts found by the court. We state first the facts involved in ground 1.

The accident occurred at a point east of the intersection of South Main street and School street in the town of Windsor Locks. South Main street is a trunk line highway running north and south. Where School street intersects it on the west at about right angles, South Main street is for a short distance nearly level, and descends for several hundred feet from this level, on the south and north, upon a 4 per cent. grade. School street, from its intersection with South Main street, rises abruptly westerly upon a 6 to 8 per cent. grade. South Main street extends east from the point of intersection for about 6 feet to a macadam roadway 12 to 14 feet in width. East of this macadam roadway are two lines of trolley tracks, nearly flush with the roadway, which occupy a space of about 11 feet to the east rail of the east trolley track, and from this point to the edge of the embankment hereinafter referred to was from 8 to 10 feet. From the intersection of School street east as far as the embankment, the surface of the macadam road, the trolley tracks, and the land to the east was substantially level.

South Main street, at the point of intersection and for a considerable distance north and south, is narrow, and vehicles meeting and passing at this point use the trolley tracks to make travel more safe; for more than 20 years prior to the accident the traveling public had used the highway occupied by the trolley tracks and the space between the east rail and two lines of poles as well as the rest of the highway These two lines of poles, one the railway poles, the other the power company poles, were located about 4 feet easterly of the east rail of the east-bound railway track and about 6 feet from the edge of the embankment. None of these poles were in the space opposite the intersection and between the east trolley track and the embankment. The space between these lines of poles and the embankment is turfed. The embankment leads to the tracks of the New York, New Haven & Hartford Railroad Company, some 40 feet beneath. The edge of this embankment has for 40 years been the accepted boundary line between the highway and the railroad. The railroad, up to about 8 years ago, had maintained on the boundary line a fence consisting of 8-inch posts, with strands of wire between the posts. At the time of the accident, the fence was in a state of dilapidation, and the space between the edge of the embankment to the railroad tracks beneath was open and without protection of any kind. The duty of maintaining and controlling South Main street as a public highway had been imposed upon the highway commissioner from about 1910, and both he and his subordinates had, from that time, known the locality near this intersection to be a dangerous place for public travel, due to the narrowness of the highway, the intersecting street, and the abrupt drop to the tracks east of the embankment. The commissioner has never erected or maintained a fence at any point between the east-bound trolley track and the embankment. A substantial fence, such as is commonly used along public highways in this state, could have been erected there at a cost of about $100, and, if erected and in good order, would have prevented the plaintiff's automobile from falling over this embankment.

General Statutes, § 1414, gives to any person, injured by means of a defective road or bridge, a right of action to recover damages from the party bound to keep it in repair, and section 1413 gives to any person injured by the want of " a sufficient railing or fence on the side of such bridge, and of such parts of such road as are so made or raised above the adjoining ground as to be unsafe for travel," a right of action to recover damages from the party bound to keep it in repair. The duty of maintenance and repair of so-called trunk line highways, and state-aid highways was by the Good Roads Act and its amendments taken from the towns and imposed upon the highway commissioner as the representative of the state. With the transposition of this duty, and as a necessary consequence of it, the liability for injuries arising from defects in such highways and for the failure to erect and maintain upon such bridges and along such roads a sufficient railing or fence, where this was necessary, theretofore placed upon the towns, was placed upon the commissioner. General Statutes, § § 1479, 1486, and 1515. We held, in Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890 893, the legislative intent in this act to be:

" To impose upon the highway commissioner, as the representative of the state, the same burden theretofore laid upon the towns as respects these highways, and that the limitations upon municipal liability apply equally to state liability."

The section of the statutes under which this liability was imposed at the time the present action arose reads:

" Any person injured in person or property through the neglect or default of the state or any of its employees by means of a defective road or bridge which it is the duty of the state highway commissioner to keep in repair, or by reason of the want of any railing or fence on the side of such bridge or part of such road so raised above the adjoining ground as to be unsafe for travel, which railing or fence it is the duty of said highway commissioner to erect and maintain, * * * may bring a civil action to recover damages sustained thereby against the highway commissioner," etc. General Statutes, § 1515.

The liability imposed upon the commissioner under this section was...