Lahunta v. City Of Waterbury.

• Decision Date: 03 June 1948
• Citation: 134 Conn. 630,59 A.2d 800
• Court: Connecticut Supreme Court
• Parties: DE LAHUNTA et al. v. CITY OF WATERBURY.

134 Conn. 630

59 A.2d 800

DE LAHUNTA et al.

v.CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

June 3, 1948.

Appeal from Superior Court, New Haven County; Cornell, Judge.

Action by Paul D. De Lahunta and others against City of Waterbury for damages for injuries to person and property, alleged to have been caused by a nuisance maintained upon the highway by the defendant, brought to the superior court at Waterbury and tried to jury.From judgment on verdict for defendant against named plaintiff, and setting aside, on defendant's motion, verdict for remaining plaintiffs against defendant, all plaintiffs appeal.

Error and new trial ordered as to the named plaintiff; error and case remanded with direction as to the other plaintiffs.

J. Warren Upson and William K. Lawlor, both of Waterbury, for appellants(plaintiffs).

Maurice T. Healey and George J. Crocicchia, both of Waterbury (Philip N. Bernstein, of Waterbury, on the brief), for appellee(defendant).

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

BROWN, Judge.

The four plaintiffs joined in this action to recover for the damage each sustained when an automobile driven by the plaintiff Paul, in which the other plaintiffs were passengers, collided at a street intersection in Waterbury with a concrete traffic stanchion, which, it is alleged, constituted a nuisance maintained by the defendant.The jury rendered a verdict for the defendant as against the plaintiff Paul, and a verdict for damages in favor of each of the other plaintiffs.The court set aside the three plaintiffs' verdicts.Judgment was rendered for the defendant city, and all of the plaintiffs have appealed.The plaintiff Paul's appeal attacks the court's charge to the jury concerning contributory negligence, and that of the other plaintiffs its decision in ordering the verdicts set aside.We consider first the question raised by the latter appeal.

The principal undisputed facts may be thus summarized: On March 22, 1942, the city maintained a stanchion, known as a silent policeman, at a street intersection in Waterbury where Watertown Avenue, a heavily traveled highway running north and south, is intersected at right angles from the west by Robbins Street, which does not cross it.Watertown Avenue, which is practically level and 47 feet wide, is straight for several hundred feet to the north and is paved with concrete laid in longitudinal panels, separated by narrow interstices.The first or most easterly panel is 11 feet wide, the second 12, the third 12, the fourth 8, and the area between that and the westerly crub is about 4 feet at its southerly end and narrows to the north.Robbins Street is 48 feet wide and flares to a somewhat greater width where it enters the intersection.There is a gasoline station on the northwesterly corner served by two driveways from Watertown Avenue.About 650 feet north of the stanchion, on the west side of the avenue, was a sign reading: ‘Speed limit 25 miles per hour,’ and some 130 feet south of this another, warning of rotary traffic ahead.There were no directional or other traffic lines painted on the surface of the avenue.

The traffic stanchion was placed and maintained by the city on the third panel from the east on Watertown Avenue, with the east face of its base 5 feet west of the easterly line of the third panel, which was approximately the center line of the paved portion of that highway, and with the center of its base 1 foot north of the middle line extended of Robbins Street.The stanchion was originally installed in October, 1940, and consisted of a concrete base with a superstructure of metal, surmounted by three blinker lights.All below these lights had been painted white, and on the north side of the base an arrow pointing west and the words ‘Slow.Go Right’ were painted in black.The base was 3 feet 2 inches square at the pavement, 3 feet 8 inches high, and 1 foot 11 inches square at the top.It weighed about 4500 pounds and was fastened to the pavement by steel dowel pins.The blinker lights were 9 feet 6 inches above the pavement.One faced south, one west and one north.Each was equipped with a 60-watt electric bulb and flashed continuously 55 times per minute.The light facing Robbins Street was red and the other two were amber.Just below these lights were four hooded lights which were designed to illuminate the stanchion below and the surrounding pavement for 3 or 4 feet on each side of it.At the time of the accident all of these lights were lighted, it was raining and the wind was blowing.Shortly after midnight the named plaintiff, with the other three plaintiffs as passengers, was driving a sedan automobile southerly on the third panel of Watertown Avenue when, upon arriving in the intersection, it collided head on with the stanchion, resulting in the injures and damage complained of.

The plaintiffs seek recovery solely upon the basis of the city's liability for nuisance, under the allegation in their complaint that ‘Said stanchion was so placed and maintained that it constituted a nuisance and a continuing condition, the natural tendency of which, was to create danger and inflict injury upon person or property especially whenever weather conditions were as described.’The case was determined upon the issue raised by the denial of this allegation in the defendant's answer.Since it is undisputed that the city intentionally created and maintained the condition complained of, if the jury properly could find that this was a nuisance it constituted an absolute nuisance and not one arising from negligence.Beckwith v. Town of Straford, 129 Conn. 506, 511, 29 A.2d 775, 777.In this connection it is to be kept in mind, as we there stated, that ‘intentional’ as here used means, ‘not that a wrong or the existence of a nuisance was intended but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance.’Accordingly, even though the city acted pursuant to the proper and lawful purpose of safeguarding traffic, in utilizing this stanchion as it did, this would not necessarily excuse it from liability, for ‘towns will not be justified in doing an act lawful in itself in such a manner as to creat a nuisance, any more than individuals.And if a nuisance is thus created, whereby another suffers damage, towns like individuals are responsible.’Mootry v. Town of Danbury, 45 Conn. 550, 556, 29 Am.Rep. 703;Bacon v. Town of Rocky Hill, 126 Conn. 402, 407, 11 A.2d 399.Whether or not the particular condition created ‘constitutes a nuisance does not depend merely upon the inherent nature of the condition, but involves also a consideration of all relevant facts.’Balaas v. City of Hartford, 126 Conn. 510, 514, 12 A.2d 765, 766.

This stanchion under the existing circumstances could not constitute a nuisance unless, first, the condition by its very nature was likely to cause injury, and, second, the use was unreasonable.Beckwith v. Town of Stratford, supra, 129 Conn. 508, 29 A.2d 775.A third essential to liability of the city in this action is that the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damage.Orlo v. Connecticut Co., 128 Conn. 231, 241, 21 A.2d 402;Beauton v. Connecticut Light & Power Co., 125 Conn. 76, 81, 3 A.2d 315;Karnasiewicz v. City of New Britain, 131 Conn. 691, 695, 42 A.2d 32.Whether or not the first two essentials exist is ordinarily a question of fact.Pope v. City of New Haven, 91 Conn. 79, 88, 99 A. 51 L.R.A.1917B, 1239;Ratti v. P. Berry & Sons, Inc., 98 Conn. 522, 525, 119 A. 894.The same is true of the third essential.Notwithstanding this and that there was conflicting evidence relating to these issues in the instant case, the defendant primarily contends that upon this record the jury were unwarranted in rendering the plaintiffs' verdicts which they did because the verdicts were based on surmise and conjecture, or the jury were influenced by sympathy, or this is ‘the rare case where the physical facts resolve the apparent conflict in the evidence by showing that the testimony which created it is either unintentionally or intentionally untrue because in conflict with the indisputable physical facts.Gianotta v. New York, N. H. & H. R. Co., 98 Conn. 743, 744, 120 A. 560.’Richard v. New York, N. H....