McManus v. Jarvis
| Decision Date | 05 January 1939 |
| Court | Connecticut Supreme Court |
| Parties | McMANUS v. JARVIS et al. |
Appeal from Superior Court, Hartford County; Daly, Judge.
Action by Thomas McManus against Alexander Jarvis and others for personal injuries alleged to have been caused by the negligence of the defendants, brought to the superior court and tried to jury. From a judgment on a verdict for the plaintiff, defendants appeal.
Error, and new trial ordered.
Argued before MALTBIE, C. J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.
Cyril Coleman, of Hartford, and William S. Hyde, of Manchester, for appellants.
Frank Covello, of Hartford, for appellee.
On September 17, 1936, the defendant Jarvis, hereinafter referred to as the defendant, was performing a contract with the state highway commissioner for the regrading and resurfacing of Wetherell Street, a town highway in Manchester, under the provisions of Chapter 79 of the General Statutes, Cum.Supp.1935, popularly known as the "dirt roads act." There were posted at each end of the section of road under repair signs reading, No detours were provided and the street was being used by residents thereon and members of the general public. As the plaintiff was walking along this street he was struck and injured by a truck driven by the defendant Stone as, the plaintiff claimed, the servant and agent of Jarvis, and which, the plaintiff offered evidence to prove, was negligently backed up suddenly and without warning as he neared the rear end of it.
Section 1513 of the General Statutes provides that "the highway commissioner may close or restrict traffic over any section of any trunk line or state aid highway or bridge for the purpose of construction, reconstruction or repair by posting notices at each end of such section of highway or at each end of such bridge, and any person using such highway when such notices are so posted shall do so at their own risk." It is included among the statutes which, by what is now § 516c, Cum.Supp. 1935, are made applicable to town highways being improved under state appropriation, as in this instance. The defendant requested a charge to the effect that if the road was posted in accordance with the statute (§ 1513) the risk of collision with one of the contractor's trucks was one assumed by persons using the posted highway "just as much as is the risk of a defect in the surface of the highway." The trial court charged, instead, that the only risk the plaintiff assumed was one of a defect in the highway itself and not that of being struck by the defendants' truck and that as to the latter "the ordinary rules of negligence apply." The first issue on appeal is the accuracy of this charge as to the extent of risk assumed by a traveler on a section of highway so posted.
Literally, the provision in the statute that persons using such highway "shall do so at their own risk" covers any hazard incurred by reason of the use, whether it be from a defect in the highway itself or from other cause, such as negligence as alleged here. In Belhumuer v. City of Bristol, 121 Conn. 475, page 478, 185 A. 421, at page 423, we said that "for the convenience of the public, the statutes make provision by which the highway commissioner may still permit persons * * * to use the highway, without liability being incurred for injuries due to defects in it" and (page 479 of 121 Conn., page 423 of 185 A.) that "the risk which a traveler using a highway closed by the commissioner under the statute assumes is the risk of injury due to a defect in the highway, to recover damages for which he would ordinarily be entitled." However, as that case pertained to a defect in the highway, there was no occasion to consider or decide as to other risks and it is not conclusive as limiting the assumption to risks arising from such defects only.
Since, unless expressly authorized, no action at law lies against a state, originally the only recourse of a person incurring damage by reasons of a defect in a highway which it was the duty of the highway commissioner to maintain was a claim against the state presented to the General Assembly. In 1915 an act was passed (Chapter 307) which was the same in substance as its lineal successor, § 1481 of the General Statutes, 1930, providing for a civil action to recover damages for injury sustained "by means of any defective road or bridge which it is the duty of the highway commissioner to keep in repair * * *." The purpose was to afford, as an alternative to resort to the legislature, a right of recovery from the state, through the highway commissioner, in an action at law similar to that given by § 1420 of the General Statutes and its predecessors against municipal corporations for damages from defective highways. "A cause of action under either of these statutes is not really one to recover damages for an injury arising from negligence, but for breach of a statutory duty." Shirlock v. MacDonald, 121 Conn. 611, 613, 186 A. 562, 563; Dunn v. MacDonald, 110 Conn. 68, 77, 147 A. 26; Porpora v. City of New Haven, 119 Conn. 476, 479, 177 A. 531; Bartram v. Town of Sharon, 71 Conn. 686, 43 A. 143, 46 L.R.A. 144, 71 Am.St.Rep. 225. Section 1513 of the General Statutes, above quoted, and the one directly involved here, was originally passed as § 44 of Chapter 263 of the Public Acts of 1925, which included a revision and re-enactment of the prior statutes concerning state aid and trunk line highways including, as § 47, the present § 1481 of the General Statutes, 1930. Section 516c, Cum.Supp.1935, merely made the statutory provisions concerning trunk line and state aid highways, including §§ 1481 and 1513, applicable also to town highways improved under the provisions of Chapter 79, Cum.Supp. 1935, with a proviso (§ 518c) that the obligations under § 1481 shall be assumed by the towns which accept allocation of state funds under that chapter.
The foregoing legislative history may suggest that the purpose of § 44 (now § 1513) was to relieve the state, so far as concerned sections of highways under construction, reconstruction or repair, from liability, under § 47 (now § 1481) and its successors, for damage incurred by reason of defects in the highway only, and to the exclusion of other causes, such as negligence of a contractor under the commissioner. On the other hand, the consideration, advanced in Belhumuer v. City of Bristol, supra, 121 Conn, page 479, 185 A. 421, supporting extension to the contractor of the...
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...Wethersfield, 135 Conn. 24, 28, 60 A.2d 771, 4 A.L.R.2d 330; Evans v. Administrator, 135 Conn. 120, 124, 61 A.2d 684; McManus v. Jarvis, 128 Conn. 707, 711, 22 A.2d 857; General Realty Improvement Co. v. New Haven, 133 Conn. 238, 241, 50 A.2d 59; Niedzwicki v. Pequonnock Foundry, 133 Conn. ......
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