Ireland v. Connecticut Co.
| Decision Date | 02 June 1930 |
| Court | Connecticut Supreme Court |
| Parties | IRELAND v. CONNECTICUT CO. ET AL. |
Appeal from Superior Court, Fairfield County; L. P. Waldo Marvin Judge.
Action by Richard H. Ireland, administrator of the estate of Aurelio D. Ricci, deceased, against the Connecticut Company and another to recover damages for death of plaintiff's intestate caused by negligence of defendants and their failure to keep a roadway in proper condition, tried to the jury. Verdict was directed for the defendant City of Stamford and against the defendant named, which, on motion of defendant named, was set aside, and plaintiff appeals.
Error and cause remanded, with directions.
William F. Tammany, of South Norwalk, for appellant.
Seth W. Baldwin, of New Haven, for appellee Connecticut Co.
William A. Bree and H. Frederick Day, both of New Haven, for appellee City.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
This accident arose out of a collision upon a highway in the city of Stamford between an automobile being operated by the plaintiff's intestate and a trolley car of the defendant company. The company and the city were both made defendants. As regards the company, the complaint alleged negligence in the manner in which its trolley car was being operated and also a failure on its part to keep the portion of the highway adjacent to the rails of its track in proper condition, and, as regards the city, it alleged a failure to maintain the highway as a whole in a proper condition. The trial court directed a verdict for the defendant city. As against the Connecticut Company the jury found the issues for the plaintiff. The plaintiff moved the court to set aside the verdict, so far as it found the issues for the city, and the court denied the motion. The Connecticut Company moved to have the verdict set aside so far as it found the issues against it, and this motion the court granted. From both of these rulings the plaintiff has appealed.
As regards defects in the highway, the plaintiff's claim was that the intestate had been driving along the highway with his two left wheels between the rails of the track, and, seeing a trolley car approaching, he attempted to turn off the track to his right, but, because the surface of the roadway next to the rail of the track had been worn away, his wheels slid along the rail instead of going over it, until it was too late to avoid a collision. Upon this claim it is obvious that the only defect in the highway which could be the immediate cause of the accident would be in that portion of the roadway just inside and next to the rail. Chapter 181, of the Public Acts of 1925, places upon street railway companies the duty to maintain and repair so much of any highway as is contained within eight inches of each side of each rail of its track, and provides that municipalities shall not be liable for any injuries due to any defect in such portions of the highway. As the immediate cause of the accident under the plaintiff's claim must have been a defect next the rail, any defect for which the city would be liable could have been at most but a concurring or contributing cause. It necessarily follows that the city could not be liable for such a defect, for it is only when a defect for which it is liable is the sole cause of the injury that the statute permitting a recovery of damages caused by it applies. Gustafson v. Meriden, 103 Conn. 598, 604, 131 A. 437. The trial court was correct in directing a verdict for the defendant city.
The jury might have found the following to be the facts: The defendant company maintained a single trolley track at about the center of the highway. The roadway is narrow, the traveled way easterly of the track being from 9 to 16 feet wide, with a row of trees at the edge of the pavement and a ridge of earth in front of them, so that while an automobile and a trolley car can pass, care in operating them is required in order to avoid accident. There is a slight hill over which a trolley car comes as it proceeds in a southerly direction. On the day of the accident the pavement of the highway was in poor condition for some distance from the place of the collision; outside the rails there were holes and uneven spots; inside the rails the pavement was much worn and at places they projected above the surface of the road. In the evening after dark the deceased with a companion was driving northerly upon the highway and was proceeding with his left wheels between the rails of the track and his right wheels on the pavement outside the track. The lights upon his automobile were lit. It had been raining and the roadway and rails were wet. When the trolley car of the defendant came over the hill the automobile was from 300 to 500 feet distant. As the trolley car approached, the driver of the automobile was pulling at the steering wheel in an attempt to turn from the track, but his wheels slid along the rail and he could not get out. When the trolley car was some 45 feet away his companion said: " My God, look out for that trolley car," and the deceased replied, " I am trying to." Just before the collision the left front wheel of the automobile crossed the track, but too late to avoid...
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