Lavigne v. City of New Haven

• Decision Date: 24 July 1903
• Citation: 75 Conn. 693,55 A. 569
• Court: Connecticut Supreme Court
• Parties: LAVIGNE v. CITY OF NEW HAVEN.

55 A. 569

75 Conn. 693

LAVIGNE

v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

July 24, 1903.

Appeal from Superior Court, New Haven County; Alberto T. Roraback, Judge.

Action by George Lavigne against the city of New Haven to enforce against the city the penalty provided by Gen. St. 1902, § 2020, for neglect to repair a highway. Defendant suffered default, and moved for a hearing in damages. From a judgment for substantial damages, defendant appeals. Reversed.

Leonard M. Daggett, for appellant .

Benjamin Slade, for appellee.

HAMERSLEY, J. In framing the complaint for such an action, it is better to state in the claim or prayer for relief that the particular relief demanded is that given by force of the statute. 2 Swift's Digest 1871, p. 596; Rules under the Practice Act, form No. 135.

The judgment of the trial court depends upon the proposition affirmed by it, that our statutes authorize an action against a town or city by a person injured by means of a defect in that portion of a highway within the municipal limits which is legally occupied by the tracks and roadway of a street railway company, other than the special action against a railroad and municipality authorized by section 3838, Gen. St. 1902. If this proposition is unsound, the court clearly erred in rendering judgment for substantial damages and in not rendering judgment for nominal damages. Error in this ruling is the principal one assigned in the reasons for appeal, and the only one which need be considered.

The maintenance of highways in a reasonably safe condition for the legitimate use of the traveling public is a governmental duty. That duty belongs to towns, unless imposed, in exceptional cases, upon some particular person. This duty was to a certain extent voluntarily assumed by towns from our earliest settlement, and occasionally imposed upon particular towns in respect to particular highways by special orders of the General Court. In 1643 the general duty was committed to public officers called "surveyors," to be appointed by the several towns. In 1672 the several townships were ordered to keep in sufficient repair all highways and bridges within their limits, and the context clearly shows that the general duty did not include highways, "the care whereof doth belong * * * to particular persons to repair." St. 1672, p. 7. In the act as revised and published in 1750, the general duty to repair all highways is expressly qualified by adding, unless where it belongs to any particular person or persons in any particular ease, and the imposition of the duty to repair has ever since been expressed in similar language, and is stated in the last revision (Gen. St. 1902, § 2013) as follows: "Towns shall, within their respective limits, build and repair all necessary highways and bridges, except where such duty belongs to some particular person."

In the absence of legislation, persons using a public highway do so at their own risk. If injury occurs from any defect in the way not resulting from the personal tort of an individual, but solely from the manner in which the state executes its function of providing avenues for public travel, such defect and injury is not an occasion from which any cause of action arises. No legal right of the person injured has been invaded; no legal duty to him has been violated. This is equally true when execution of the function is committed to the inhabitants of a municipality. The governmental duty thus imposed is a burden which the inhabitants are compelled to carry, and the failure to obey the law, or neglect in its execution, may be punished in any manner the state may prescribe. But the mere imposition of the burden creates no duty and correlative right as between the municipality and the persons using the highway. Where the burden is voluntarily assumed in the promotion of private benefit, another principle may become involved, although such assumption may be of the nature of a governmental duty.

Different modes of punishing neglect of this duty and of compelling obedience have been provided by law. But that most effective and generally used is the fine or forfeiture, measured by the actual damage suffered by an injured person. In this way the state voluntarily compensates the person injured through his reliance upon its reasonable execution of this governmental function, and punishes the municipality upon which it has imposed such execution, for neglect of duty in this respect, by compelling it to pay the compensation thus authorized, as a penalty for its neglect. By force of this legislation only, and within the limits of its terms, can any action or proceeding against a town in respect to a defect in a public highway be maintained. No duty and no liability exists that is not imposed by statute. Chidsey v. Canton, 17 Conn. 475, 478; Stonigton v. States, 31 Conn. 213, 214; Burr v. Plymouth, 48 Conn. 460, 472; Beardsley v. Hartford, 50 Conn. 529, 537, 47 Am. Rep. 677; Lounsbury v. Bridgeport, 60 Conn. 360. 364, 34 Atl. 93; Daly v. New Haven, 69 Conn. 644, 648, 38 Atl. 397; Bertram v. Sharon, 71 Conn. 686, 693, 43 Atl. 143, 46 L. R. A. 144, 71 Am. St. Rep. 225; Upton v. Windham, 75 Conn. 288, 292, 53 Atl. 660.

The liability to the penalty is limited by the same terms used to limit the duty for the neglect of which the penalty is the punishment As expressed in the Public Acts of 1750, p. 17: The duty of the town ends where the duty of maintenance in sufficient repair belongs to any particular person or persons in any particular case, and the liability to penalty extends only to "the town or person which ought to secure and keep in repair such ways"; that is, to the town or person through whose neglect (of duty imposed by the statute) such hurt is done. When this language was originally used, there were few instances of the duty to repair resting on persons other than townships. In respect to some highways it was imposed upon the county. Special orders of the General Court may have put the duty upon a particular town in respect to a bridge or highway without its limits. Possibly the duty of repairing certain bits of highway leading to ferry landings may have belonged to owners of ferry franchises. But it is evident that the language is used chiefly to express with certainty the principle on which the legislation is based, applicable alike to 'uture and present conditions. That is, when the state commits to any person the execution of its functions of providing safe highways, in respect to any highway or any portion of a highway, it will punish neglect by that person of the governmental duty thus Imposed, whenever an innocent traveler is injured by a defect in the highway existing through such neglect. This duty is, by a general statute, specifically imposed upon the several towns in respect to highways and portions of highways within their limits, whose maintenance is not committed to other persons.' It is, by particular statute, specifically imposed upon some particular persons in respect to particular highways and portions of highways. The penalties for neglect are directed to the person who neglects the duty imposed. The general statute necessarily includes, by reference, all particular statutes; and the duty to repair, and the penalty for neglect, in respect to any portion of highways designated in a particular statute, is imposed on the particular persons therein named, and is not imposed upon the several towns.

The first occasion for applying the principle of the statute to new conditions arose when turnpike companies began to be chartered. In an action upon the statute against such a company to recover damages for an injury caused by a defect in the highway which the company had neglected to repair, it was claimed that the defendant was not liable, because the statute did not authorize the action. Admittedly, turnpike roads are necessary highways within the limits of the town through which they pass. It was urged that the statute imposed the duty to repair a necessary highway, and the penalty for neglect, upon the town, unless the duty to repair in a particular case was imposed upon some other person, and that no statute imposed upon the defendant this duty, or a penalty for its neglect, enforceable by action upon the statute. But this court held that a turnpike company, in accepting its charter, building its road, and collecting tolls, became bound by law to keep the highway in safe repair, and so the statute imposed the statutory duty, in this particular case, not upon the town, but upon the company, and that the penalty for neglect and the action authorized for its enforcement was, by the terms of the statute, directed, not against the town, but against the turnpike company. Goshen & Sharon Turnpike Co. v. Sears, 7 Conn. 86. When cities and boroughs began to be incorporated within the limits of towns, the duties and...