Paulsen v. Town of Wilton

• Decision Date: 09 June 1905
• Citation: 78 Conn. 58,61 A. 61
• Court: Connecticut Supreme Court
• Parties: PAULSEN v. TOWN OF WILTON.

61 A. 61

78 Conn. 58

PAULSEN

v. TOWN OF WILTON.

Supreme Court of Errors of Connecticut.

June 9, 1905.

Appeal from Superior Court, Fairfield County; Ralph Wheeler, Judge.

Action by John Paulsen against the town of Wilton. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. Belden Hurlbutt and Stiles Judson, for appellant Charles W. Murphy, for appellee.

HAMERSLEY, J. On the evening of November 18, 1903, the plaintiff was walking along a highway of the defendant town known as "Portland Avenue." At a turn of the road, where it was unprotected by any railing or fence, he fell down an embankment upon the roadbed of the Danbury & Norwalk Railroad Company, now operated under a lease by the New York, New Haven & Hartford Railroad Company, and thereby received severe injuries. This action is brought upon the statute to recover from the defendant damage for the injury caused by its neglect to maintain the highway in a reasonably safe condition for public travel. The neglect consisted in the failure to erect a fence or railing, necessary to its safe condition, at the side of the road at the point where the accident occurred. The complaint contains the allegations appropriate and necessary to the statement of such a cause of action. The defendant suffered a default, and moved for a hearing in damages. The statute does not permit the defendant, upon such a hearing, to offer any evidence in contradiction of any allegations in the complaint except such as relate to the amount of damages, unless he shall have given written notice, in the manner prescribed, of his intention to contradict such allegations; nor does it permit him to deny the right of the plaintiff to maintain such action, nor to prove any matter of defense, unless he shall have given like written notice of his intention to deny such right or prove such matter of defense. Rev. 1902, § 742. Prior to the hearing in damages the defendant gave notice of its intention to offer evidence to disprove each allegation of the complaint except the ninth, which alleges that the plaintiff served upon the defendant the notice giving the time, place, etc., of the accident, as required by statute, and also of its intention to prove contributory negligence.

It appears from the finding of the court that upon the hearing in damages the evidence produced satisfied the court of certain facts, of which the following are some: In 1850 one William Mallory conveyed to the Danbury & Norwalk Railroad Company, for the purposes of a railroad right of way, a strip of land on the line of its location, 1,504 feet in length and 4 rods in width, bounded northerly and easterly on his own land and westerly by the Sugar Hollow turnpike road, a highway of the defendant town, and the railroad track upon which the plaintiff fell is laid through this strip of land. Near the northerly end of this strip of land the Sugar Hollow Turnpike, described as its westerly boundary, turns and crosses the railroad layout, and then proceeds in a northerly direction, on the easterly side of the layout, to a station called "Branchville." The accident to the plaintiff occurred at a point within 300 feet southerly of this crossing, on the easterly side of the railroad roadbed. In 1874 said Mallory conveyed to one Gilbert his land on the easterly side of and adjoining the strip of land he had sold to the railroad company. In 1875 said Gilbert opened a private road upon the land he had thus acquired from Mallory, extending from a point on the Sugar Hollow highway near the railroad crossing, and on the easterly side of the track, some 500 or 600 feet to the Redding town line. This road, for about 300 feet from the Sugar Hollow highway, ran southerly, approximately parallel with the railroad track, and then turned in a more easterly direction. The land appropriated to the uses of this road was about 40 feet in width, and the road as used by Gilbert enabled him to reach the Sugar Hollow Turnpike without crossing the railroad track. In 1890 the town of Redding established a public highway connecting with the private road of Gilbert at the town line, and thereupon Gilbert removed the fence which he had placed at the northerly end of his private road where it entered the Sugar Hollow highway, and dedicated the land, 40 feet in width and some 500 or 600 feet in length, previously used as a private road, to the public for use as a public highway, and this dedication was shortly afterwards accepted by the public. The highway thus dedicated and accepted, connecting the public highway In Redding with the Sugar Hollow highway in Wilton, became a public highway of the town of Wilton prior to 1892, and at the time of the accident was, and for some time prior thereto had been, maintained as such public highway by the defendant. This highway, known as "Portland Avenue," is the highway mentioned in the complaint, and at the time of the accident was in a dangerous and unsafe condition, by reason of the neglect of the defendant to provide a fence or railing on its southerly side at the place where the accident occurred. Upon all the evidence produced the trial court held that the defendant had failed to establish by preponderance of evidence the facts mentioned in its said written notice, and assessed substantial damages. The court also...