Pape v. Cox

• Decision Date: 01 July 1942
• Citation: 28 A.2d 10,129 Conn. 256
• Court: Connecticut Supreme Court
• Parties: PAPE v. COX, Highway Commissioner.

28 A.2d 10

129 Conn. 256

PAPE

v. COX, Highway Commissioner.

Supreme Court of Errors of Connecticut.

July 1, 1942.

Rehearing Denied Sept 1, 1942.

Appeal from Superior Court, Litchfield County; Wynne, Judge.

Action by William J. Pape against William J. Cox, Highway Commissioner, to recover damages for personal injuries alleged to have been caused by a defective highway, brought to the Superior Court and tried to the court. From a judgment for plaintiff, defendant appeals.

Error and case remanded with direction.

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

William H. Tribou, of Hartford (Edward I. Taylor, of Hartford, on the brief), for appellant.

J. Warren Upson, of Waterbury, for appellee.

AVERY, Judge.

The plaintiff brought this action under General Statutes, § 1481, against the state highway commissioner to recover for personal injuries alleged to have been caused by a defective condition of a state highway due to ice. The question presented by this appeal is whether the trial court was justified in reaching the conclusion that the icy condition upon the highway at the point where the plaintiff was injured had existed for a sufficient length of time to charge the defendant with constructive notice of its existence and afford reasonable opportunity to remedy it. The following facts found by the trial court are undisputed: There runs through the town of Middlebury, in a general easterly and westerly direction, a state highway which is a main traffic artery connecting Waterbury with points west and one of the four main east and west highway routes through the state. It carries a large amount of traffic. It has a concrete surface twenty feet in width divided into two lanes. At the point where the plaintiff was injured there is a sharp curve heavily banked, the north side of the highway being eighteen inches lower than the south side. On the south side, partly within the bounds of the highway, there is a stand of pine trees five or six feet apart and more than forty feet in height. These cast a shadow over the road at the curve and in the spring and fall cause ice to form upon the concrete surface from condensation.

On November 20, 1940, at about 7:30 in the morning, the car in which the plaintiff was driving from Middlebury toward Waterbury skidded upon ice upon this curve and ran into a sandbank on the north side of the highway and was damaged. The plaintiff was not injured. He returned to his home, took another car, drove to the place of the accident, stopping the car on the south side of the road, crossed the road and opened the door of his car on the right side. He was struck by a car proceeding towards Waterbury which had skidded on the curve and crashed into the car which the plaintiff was about to enter, with the result that the plaintiff's leg was caught between the two running boards and was injured. This occurred about 8 o'clock in the morning of November 20th. In the afternoon of November 19th, the employees of the defendant inspected the highway and found it in good condition and free from ice or frost on the curve. There had been no precipitation of moisture for some days before the plaintiff was injured, and upon that day there was no accumulation of ice or snow upon the highway generally or in the vicinity of the curve. For the twenty-four hour period ending at 6 p. m., November 18th, the maximum temperature was 43 degrees and the minimum 33; for the twenty-four hour period ending at 6 p. m., November 19th, the maximum temperature was 49 degrees and the minimum 22; for the twenty-four hour period ending at 6 p. m., November 20th, the maximum temperature was 55 degrees and the minimum 35. On the afternoon of November 19th, at about 4 p. m., there was no ice on this curve.

The trial court further found that the curve was covered with a thin layer of ice from about 11 p. m. on November 19th until the accident occurred at about 8 a. m. on November 20th, and by reason of this icy condition the highway was defective during that entire period. There was evidence before the trial court that the son and daughter-in-law of the plaintiff drove over the highway at about 11 p. m. on November 19th and their car skidded in rounding the curve. Other than this testimony, there was no evidence to support the trial court's finding that a thin layer of ice covered the curve from 11 p. m., November 19th, until the time of the accident at 8 a. m. on the morning of November 20th.

It is an established principle of our law that § 1481 of the General Statutes affords a right of recovery from the state through the highway commissioner as its representative similar to that given by General Statutes, § 1420, against municipal corporations for damages from defective highways and is subject to the same limitations. Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890; Falkowski v....