Kenneson v. City Of Bridgeport.

• Citation: 33 A.2d 313,130 Conn. 298
• Court: Supreme Court of Connecticut
• Decision Date: 13 July 1943
• Parties: KENNESON v. CITY OF BRIDGEPORT.

130 Conn. 298

33 A.2d 313

KENNESON

v.CITY OF BRIDGEPORT.

Supreme Court of Errors of Connecticut.

July 13, 1943.

Appeal from Superior Court, Fairfield County; Daly, Judge.

Action by Mary Kenneson against the City of Bridgeport to recover damages for personal injuries alleged to have been caused by a defect in a highway in the defendant city, brought to the Superior Court and tried to the jury. Verdict and judgment for plaintiff and appeal by defendant.

No error.

John V. Donnelly and Harry Schwartz, both of Bridgeport, for appellant.

Joseph G. Shapiro, Milton H. Belinkie and Norris Rossinoff, all of Bridgeport, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

The plaintiff brought this action to recover for injuries caused by being thrown from the rear seat of an automobile in which she was riding when it struck a series of depressions in the roadway of Evitt's Lane in the defendant city. The plaintiff claimed that Evitt's Lane was a public highway by dedication and based her complaint upon the statute permitting recovery against a town or city for injuries due to a defective highway. General Statutes, § 1420. The case was tried to a jury, a verdict was rendered for the plaintiff and the defendant has appealed from the denial of its motion to set it aside and from the judgment. Evitt's Lane was not laid out or ever formally accepted by the city as a public highway, and the principal issue is: Had the lane become a public highway by dedication? On the defendant's appeal from the denial of its motion to set the verdict aside, its only claim is that the evidence failed adequately to support a conclusion that common convenience and necessity would be served by the public's use of the lane, and that, without proof of this, it could not be found to constitute a highway by dedication.

In Paulsen v. Town of Wilton, 78 Conn. 58, 64, 61 A. 61, 63, we said that the fact of common convenience and necessity is involved in the establishment of every highway; ‘but in the case of a highway established by dedication this fact is settled in a manner peculiar and differing from that prescribed by statutes authorizing the layout and establishment of highways.’ In City of Hartford v. Day, 64 Conn. 250, 254, 29 A. 480, we said, in speaking of the layout of highways under the statutes, that the words ‘common convenience and necessity’ are often found in our statutes and judicial decisions as applied to various subjects of a common and public nature. ‘It is an expression not very easy to define, but its meaning may be sufficiently well understood by considering the elements of which it is composed.’ In Re Application of Shelton St. Ry. Co., 69 Conn. 626, 629, 38 A. 362, 363, we said that courts have been called upon to decide whether conditions existing in a particular case create ‘a public convenience and necessity’ within the meaning of some legislative act; and that ‘the substantial thing to be decided retains much of the inherent indeterminate character of the original question of public policy.’ In Bryan v. Town of Branford, 50 Conn. 246, 253, we said that the word ‘necessity’ in the phrase ‘common convenience and necessity’ used in the statutes concerning the layout of highways did not mean indispensable. ‘The necessity referred to is not absolute, but a reasonable public exigency. The words that precede, namely, ‘common convenience and,’ somewhat modify the meaning of ‘necessity.” In that case we sustained the layout of a shorter road to a certain destination which could be already reached by existing highways. See also Wardsboro v. Jamaica, 59 Vt. 514, 516, 9 A. 11; Corey v. Swagger, 74 Ind. 211, 213; Aurora & G. Ry. Co. v. Harvey, 178 Ill. 477, 485, 53 N.E. 331; Komposh v. Powers, 75 Mont. 493, 506, 244 P. 298; McCulloch v. State of Maryland, 4 Wheat. 316, 414, 17 U.S. 316, 414, 4 L.Ed. 579. Use by the public may in itself be evidence that a highway is of common convenience and necessity. Levine v. Town of West Haven, 120 Conn. 207, 210, 179 A. 841. Nor is it necessary that the use be more general than such as serves the convenience of those persons who have lawful occasion to pass over the road; Levine v. Town of West Haven, supra; Phillips v. City of Stamford, 81 Conn. 408, 412, 71 A. 361, 22 L.R.A.,N.S., 1114; thus in Bryan v. Branford, supra, the road the layout of which was sustained was principally used to reach a summer resort. Whether the circumstances proven are sufficient to meet the legal requirements of a dedication is a question of fact. Phillips v. City of Stamford, supra, 81 Conn. 411, 71 A. at page 363, 22 L.R.A.,N.S., 1114; Sawicki v. Connecticut Ry. & Lighting Co., 129 Conn. 626, 630, 30 A.2d 556.

The jury could reasonably have found the following facts: Evitt's Lane is located near a business center in the defendant city. It runs from East Main Street to Kossuth Street substantially parallel to two other streets, Stratford Avenue and Nichols Street, which also run between East Main and Kossuth Streets. The former is one of the principal easterly and westerly thoroughfares of the city. Evitt's Lane is 177...