Morico v. Cox.

• Decision Date: 03 December 1947
• Parties: MORICO et al. v. COX.
• Court: Connecticut Supreme Court

134 Conn. 218

56 A.2d 522

MORICO et al.

v.COX.

Supreme Court of Errors of Connecticut.

Dec. 3, 1947.

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

Action by Joseph Morico and others against William J. Cox, Highway Commissioner, for injuries to person and property allegedly caused by a defect in the highway. From the verdict and judgment, defendant appeals.

Error, and new trial ordered.

Charles A. Watrous, and Jerome Hershey, both of New Haven, and Harry L. Brooks, Asst. Atty. Gen., for appellant.

Martin E. Gormley, of New Haven, for appellees.

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

DICKENSON, Judge.

This is an appeal from a judgment entered on a verdict for the plaintiffs in an action for damages for injuries caused by a defective highway. Error is assigned in the denial of a motion to expunge part of the complaint, in rulings on evidence, in the charge and in the refusal of the court to submit a requested interrogatory.

The claims of proof necessary for a determination of the issues we discuss are as follows: The plaintiffs' claims are that on January 9, 1945, between 10 and 11 a.m., a truck owned by the plaintiff Guyott Construction Company and operated by the plaintiff Morico in a northerly direction skidded on ice on Castle Bridge, which carries route 8 over railroad tracks and the Naugatuck River at the Litchfield-Harwinton town line, and collided with the side of the bridge, injuring the driver and the truck; that route 8 is a main traffic artery and a very heavily traveled highway; that, at the time of the accident and for approximately 20 hours before, the surface of Castle Bridge and the highway immediately south of it was coated with ice and slippery, was unprotected by sand or other abrasive material and was dangerous for automobile traffic without sanding; that this condition was the sole cause of the plaintiffs' injuries and that the defendant had failed to use reasonable care to remedy it.

The defendant's claims are that an ice slick extended from a point about 300 feet south of Castle Bridge on route 8 to three-fourths of the way across the bridge; that the ice was very thin and was caused by fog from the Naugatuck River; that there was no ice on the bridge or on route 8 for 4 miles north and 3 miles south of Castle Bridge at 11 p.m., on January 8, 1945, except a small patch which was between 100 and 300 feet south of the bridge and which had been sanded; that for 300 feet south of Castle Bridge route 8 forms a curve, that the roadway on the bridge is straight and level, and that the plaintiffs' truck started to skid on ice on the curve.

The complaint in the action alleges two separate statutory breaches of duty on the part of the defendant arising out of a defective highway and an insufficient bridge railing. The statutes upon which the allegations were based, General Statutes, § 1481, and General Statutes, § 1419, as amended by § 301g of the 1943 Supplement, both require, as a condition precedent to bringing action, that notice be given containing a general description of the injury and the cause thereof, and of the time and place of its occurrence. General Statutes, § 1419, as amended by § 301g, relating to defective railings, contains the further provision that no such notice ‘shall be held invalid or insufficient by reason of an inaccuracy in describing the injury, or in stating the time, place or cause of its occurrence if it appears that there was no intention to mislead or that such party was not misled thereby.’ General Statutes, § 1481, relating to defective highways, contains no such provision. The notices served by the plaintiffs contain no reference to injuries caused by an insufficient railing. The defendant moved to expunge from the complaint the allegations claiming liability as a result of an insufficient railing on the ground that they were immaterial and irrelevant. The motion was denied and the defendant has appealed from the ruling. He contends that, in the absence in the notices of claims of injury caused by an insufficient railing, the allegations charging this in the complaint constituted immaterial and irrelevant matter. The trial court in denying the motion filed a memorandum in which it pointed out that a motion to expunge is not designed to test substantial claims. This was correct. In exceptional cases such a motion may be granted on the grounds claimed, Donovan v. Davis, 85 Conn. 394, 398, 82 A. 1025, but not when the motion is in effect, as here, a demurrer. Cole v. Hawley, 95 Conn. 587, 592, 111 A. 892.

When the case was given to the jury, an interrogatory was submitted to them as to whether any defect in the railing was a substantial factor in producing the plaintiffs' injuries, and they answered in the negative. This obviates any necessity of considering the charge as to liability of the defendant on that ground. Moore v. Waterbury Tool Co., 124 Conn. 201, 215, 199 A. 97, 116 A.L.R. 564. The defendant, however, makes the further claim that the charge on the notices required under both statutes must have confused the jury and, specifically, that, whereas the court instructed the jury in effect that it was a question of fact for them to decide whether there was sufficient notice under the railing statute, in view of the saving clause, it failed to charge them as to their duty under § 1481, which has no saving clause. Connected with this assignment of error is a further one for failure of the court to charge, in response to a request, that the plaintiffs were required to prove that the defects complained of in their written notices were the sole cause of their injury. The position the trial court took on this matter is disclosed in a colloquy between court and counsel in connection with exceptions taken after the charge had been delivered. The defendant excepted to the charge on the ground that it conveyed the impression to the jury that the matter of notice under § 1481 was of no concern to them but was for the court to determine. The trial court stated that its theory of the case was that in the absence of a saving clause in the statute ‘the sufficiency of any notice is entirely a legal question for the decision of the court and not of the jury.’ The plaintiffs contend in their brief that this was a correct exposition of the law and cite Sizer v. Waterbury, 113 Conn. 145, 155, 154 A. 639, as authority. That was a case brought under a statute containing a...