O'Neil v. Town of E. Windsor

• Decision Date: 22 May 1893
• Citation: 27 A. 237,63 Conn. 150
• Parties: O'NEIL v. TOWN OF EAST WINDSOR.
• Court: Connecticut Supreme Court

27 A. 237

63 Conn. 150

O'NEIL

v. TOWN OF EAST WINDSOR.

Supreme Court of Errors of Connecticut.

May 22, 1893.

Case reserved from court of common pleas, Hartford county.

Action by James O'Neil against the town of East Windsor. Case reserved for advice of supreme court on facts found.

T. E. Steele and F. A. Scott, for plaintiff.

G. G. Sill and G. E. Sill, for defendant.

ANDREWS, C. J. In this action the plaintiff claimed to recover the value of a horse which he alleged had been injured by reason of a defective highway, which it was the duty of the defendant town to keep in repair. The case was heard in the court of common pleas in Hartford county, and reserved for the advice of this court upon a finding of the following facts: About 7:30 o'clock of the evening of January 5, 1892, the plaintiff's son, engaged in the plaintiff's business, was driving a pair of the plaintiff's horses, attached to an empty farm wagon, on a highway belonging to the defendant town. The team was walking in an easterly direction, up a long hill east of a bridge over the Scantic river, and was in the traveled path. When about 400 feet east of the bridge, the son turned the team out of the traveled path to the left, and to the side of the highway, to avoid a collision with a horse and wagon driven very fast down the hill. The plaintiff's team thereby came against a log lying on the highway at that point. The off horse was thrown down by the log, and received injuries on its head. This log was the stem of a dead poplar which once stood on the north bank of the highway, but had fallen over the gutter, and upon a part of the highway available for travel, and lay sloping, and at an angle of about 45 degrees with the line of the highway, and pointing down the hill. The top of the tree was gone. The stem was about 22 feet long, 1 foot through at the butt, (which rested on the bank,) and 6 1/2 inches through at the small end, which was from 2 to 3 feet off the north rut of the wagon track. The stem was free from branches, but a part of one near the top projected from the west side about 6 inches. The log lying as described rendered that part of the highway on which it lay defective, and, especially in the night, unsafe. The center line of the traveled path was about 2 feet north of the center line of the highway, which was 21 feet wide at this place. There was sufficient space south of the traveled path for such a team as the plaintiff's to safely pass another vehicle coming along the traveled path from the opposite direction. The plaintiff's son was 30 years of age, and accustomed to driving horses. He first saw the horse and wagon coming when about 8 feet away, and in turning to the left, instead of to the right, only sought to escape a threatened collision. The night was moonless and slightly hazy. The wounds received by the plaintiff's horse as aforesaid resulted in lockjaw, and on February 13, 1892, the horse was killed, by the plaintiff's direction and by the advice of a competent veterinarian, as a relief from its sufferings. Its recovery was then beyond reasonable expectation. The log and stem had lain as described on the highway at least six weeks before the accident. By an arrangement between the three selectmen of the defendant town, each of them had the inspection of a certain highway district, so that each highway should be inspected every month. There was no inspection of the part of the highway where the accident occurred from some time in November, 1891, until after January 5, 1892. The defendant had no actual notice of this defect in the highway until after January 5, 1892. The highway was the main thoroughfare between the city of Rockville and Warehouse point, was used frequently, and about 20 vehicles passed over it daily. There are between 90 and 100 miles of public roads in the defendant town. The value of the horse was $250 just before the injury. No question was made as to the defendant's duty to keep the highway in sufficient repair. The plaintiff gave the notice to the defendant required by section 2673 of the General Statutes of 1888. By request of both parties in the above cause, it was reserved for the advice of the supreme court of errors on the following questions of law, raised by the defendant on the trial: (1) That the plaintiff, having killed the horse as aforesaid, cannot make the defendant responsible for its entire value; (2) that by turning of the plaintiff's team to the left as before described, instead of the right, the plaintiff's son and agent was guilty of such negligence as to prevent a recovery by the plaintiff in this action; (3) that, under the foregoing facts, the court of common pleas cannot find as a fact that the defendant town had constructive notice of said defect in the highway, or that it did not exercise a proper and reasonable supervision of the highway.

The defendant is liable in this action, if at all. only on the ground that it was chargeable with negligence in permitting its highway to be out of repair;...