Moleske v. MacDonald

• Decision Date: 13 June 1929
• Parties: MOLESKE v. MACDONALD, STATE HIGHWAY COM'R.
• Court: Connecticut Supreme Court

146 A. 820

109 Conn. 336

MOLESKE v. MACDONALD, STATE HIGHWAY COM'R.

Supreme Court of Errors of Connecticut.

June 13, 1929

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action by Jane Moleske against John A. MacDonald, State Highway Commissioner, for damages for personal injury alleged to have resulted from a defective sidewalk in East Haven, brought to the court of common pleas for New Haven county. Demurrer to the complaint sustained, and, plaintiff refusing to plead over, judgment was rendered for the defendant, from which the plaintiff appealed. No error.

Frank W. Daley, Edward L. Reynolds, and Raymond J. Devlin, all of New Haven, for appellant.

James W. Carpenter, of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HAINES, J.

The assignments of error all relate to a single question, well stated by counsel for the plaintiff-appellant as follows " Whether the statutes impose on the Highway Commissioner the duty of maintaining sidewalks on trunk line highways lying within highway limits, the neglect to perform which, renders him liable in damages."

For the purposes of this appeal, the conceded facts are that on the 1st day of October, 1928, about 7 o'clock in the evening, the plaintiff, while walking on a sidewalk on the southerly side of Main street in East Haven, fell and was injured, by reason of the defective and dangerous condition of the sidewalk which was of tar, very old, worn, broken, and cracked. This defective condition had existed for a long time prior to the plaintiff's fall. It is also conceded that Main street is a trunk line highway over which the defendant in his capacity of state highway commissioner has jurisdiction, as a representative of the state. The appellant claims, in effect, that this jurisdiction is all-inclusive, from fence line to fence line, while the appellee says it is exclusive only so far as the purpose and intent of our state highway legislation requires.

Appellant bases this action upon Acts of 1925, chapter 263, § 47, reading as follows: " Any person injured in person or property through the neglect or default of the State or any of its employees by means of any defective road or bridge which it is the duty of the Highway Commissioner to keep in repair, * * * may bring a civil action to recover damages sustained thereby against the Highway Commissioner. * * *"

For the purposes of legal definition the word " road," like the word " street," has often been held to include sidewalks and that meaning has been given it in decisions by this court under General Statutes, § 1414, where the term " defective road or bridge" also appears --a statute imposing liability upon municipalities from which they would otherwise be exempt on principles of governmental duty. Keating v. New London, 104 Conn. 528, 133 A. 586; Frechette v. New Haven, 104 Conn. 83, 96, 132 A. 467; McGar v. Bristol, 71 Conn. 652, 42 A. 1000; Cusick v. Norwich, 40 Conn. 375; Manchester v. Hartford, 30 Conn. 118. While this is true and the word is often used to designate the entire space between the fence lines, it is also often used in a more restricted sense, as applying only to that portion actually used for vehicular traffic.

" In constructing sidewalks it is more convenient to place them within the lines of the highway, and so when laid they form a part of the highway. But the power and duty of building and maintaining highways does not necessarily include the duty of building and maintaining sidewalks. The construction of a sidewalk, like the establishment of a building line, may well be independent of the construction of a street, and in most cities sidewalks, because they are more closely related to the adjoining land and serve more directly the use of that land, are made the subject of separate rules and are constructed in pursuance of separate authority." State v. McMahon, 76 Conn. 97, 105, 55 A. 591, 594.

From this and many other illustrations which could be given, it is apparent that the term " road" is a comprehensive one, and the sense in which it is employed is determinable from the intent and purpose of the statute in which it appears.

Turning then to the statute in question, Acts of 1925, chapter 263, § 47, we inquire: What purpose was intended by the Legislature by its enactment?

Primarily, the governmental duty of building and maintaining public highways rests upon the state itself, but it may delegate this duty to agents of its own designation. Under this power, in 1672, the duty was placed upon the towns by statute, save where it belonged to certain particular persons, and so it has remained. Acts 1672 (Ed. 1673) p. 7; Acts 1750, p. 17; General Statutes, Rev. 1875, p. 231, § 1; General Statutes, Rev. 1888, § 2666; General Statutes, Rev. 1902, § 2013; General Statutes, Rev. 1918, § 1407. A similar policy is observable in relation to the construction and maintenance of sidewalks in towns, and the duty is imposed upon each town as to sidewalks within its own limits. General Statutes, § § 450, 451, 452; Hartford, Private Acts, vol. 6 (Sp. Laws) p. 314; vol. 9 (Sp. Laws) p. 626; vol. 17, p. 790; New Haven, Private Acts, vol. 5, p. 597; vol. 17, 1915, p. 220; vol. 18, p. 500; New London, Private Acts, vol. 1, pp. 431, 439; vol. 5 (Sp. Laws) p. 105; Middletown, Private Acts, vol. 1, p. 398. This duty was placed upon the town of East Haven, in which is the sidewalk in question, by Special Acts of 1915, chapter 114, § § 9, 15, 18.

The act upon which the case of the appellant rests, Acts of 1925 chapter 263, changes the long-established policy of our state, and provides for state aid to towns in the construction of certain public highways under prescribed conditions and for the construction and maintenance by the state of certain roads, as a part of a state trunk line system theretofore established by the state. The state highway commissioner, in addition to his powers and duties in connection with such roads, is authorized to " lay out, alter, construct or reconstruct, maintain or repair, widen or grade any highway whenever, in his judgment, the interest of the State shall so require." Section 25. Save as to certain regulations ...