Perrotti v. Bennett

• Decision Date: 17 April 1920
• Citation: 109 A. 890,94 Conn. 533
• Parties: PERROTTI v. BENNETT, State Highway Com'r.
• Court: Connecticut Supreme Court

109 A. 890

94 Conn. 533

PERROTTI v. BENNETT, State Highway Com'r.

Supreme Court of Errors of Connecticut.

April 17, 1920

Appeal from Superior Court, New Haven County; John E. Keeler, Judge.

Action by Domenico Perrotti against Charles J. Bennett, State Highway Commissioner, to recover damages for injuries to the plaintiff's automobile truck and its contents, alleged to have been caused by the negligence of the defendant in the construction and maintenance of the highway, brought to and tried by the superior court in New Haven county, facts found and judgment rendered for the defendant, from which the plaintiff appealed. Error and new trial ordered.

The highway in Hamden known as the New Haven-Cheshire road on September 10, 1917, had about 35 feet of it permanently paved; near the middle of which were located double tracks of the Connecticut Company, the paved portion of the highway to the right and westerly of the westerly track being about 8 1/2 feet wide, while west of this was an unpaved portion of the highway about 3 feet wide, slightly sloping toward the gutter, but substantially on a level with the paved portion.

In 1912, when this highway was improved the town of Hamden laid a drain in the westerly side of this highway and parallel with and about 1 1/2 feet westerly of the westerly edge of this pavement and in accordance with the plan adopted for the construction used in improving this highway. At the place of the accident the drain was located about 12 inches below the surface, and covered with sand and gravel. The drain was properly constructed, and was of proper material being a double strength 1-foot tile drain.

This highway at the place of accident had been, in 1913 permanently paved by the state highway commissioner, and at the time of the accident was a part of the state trunk line system, so called, and was under the direction and control of the highway commissioner, and during this period was properly maintained and kept in proper repair.

On this day the plaintiff was driving his heavily loaded motortruck the body of which was about 8 feet wide, and overhung the chassis considerably on each side, upon this highway. The drain was not properly protected upon its upper surface from damage by heavy superimposed weight. The plaintiff, to avoid an approaching trolley car, drove to the right or westerly side of the highway, and because of the unusual width of his truck he drove onto the unpaved portion of this highway. Owing to the weight of the truck and its load, his right wheels began to sink into the soil, and, on reaching the place where the drain was laid they crushed through the drain, and caused the injuries for which he sues.

The trial court finds that-

" There was no negligence or default of the highway commissioner or any of his employés in failing to properly maintain the same or to keep it in proper repair."

" The highway commissioner, his servants and agents, knew the manner of the construction of the highway and the materials used in the construction of the drainpipes at the place in question, and maps, plans, and specifications showing same were in the possession of the highway commissioner, his agents and servants, on or before the time of the accident."

The damage to the plaintiff was not the result of neglect by the highway commissioner to properly maintain or repair said drain or said highway, but it was due to a defect in the original plan of construction of said drain, which did not provide for additional covering or protection of the tile where it came so close to the surface as the place in question, so that it could withstand the weight of the plaintiff's truck and its heavy load.

The plaintiff at the time of the injury to his truck was in the exercise of due care, and not in any way negligent.

The memorandum of decision is made a part of the finding, and states as the cause of the accident:

" There was evidently a defect in the highway at the point in question, caused by the fact that either the tile drainpipe was not covered and protected otherwise than by the layer of gravel which was between it and the surface, or that iron pipe was not used instead of earthen pipe, or perhaps for both reasons."

Charles T. McClure and George W. Crawford, both of New Haven, for appellant.

Charles Kleiner and William B. Turley, both of New Haven, and Frank E. Healy, Atty. Gen., for appellee.

WHEELER, J.

Three exceptions to the finding are pursued upon the appeal. Paragraph 9 recites that the " drain was properly constructed and was of proper material." This the plaintiff urges conflicts with the evidence, and is contradicted by another part of this paragraph of the finding, as well as by the memorandum of decision.

As the plaintiff had a right to operate a truck the combined weight of which with that of the load did not exceed 25,000 pounds, he was within the law. The plaintiff justly says:

" ‘ Proper construction,’ and ‘ proper material’ in this case would mean a drain that would support a legal weight."

If this finding stood alone, it must be held to be at variance with the evidence.

The finding is to be read as a whole, and since the memorandum of decision is expressly made a part of the finding, the finding is to be read in connection with it. So read, we think there is no necessary conflict, and that the true interpretation of the finding accords with the evidence.

All that the trial judge intends to say is that the earthen drain was built of proper material, and properly constructed for that kind of a drain, and that the accident occurred either through the fact that the drain was not properly covered and protected, or that iron pipe was not used instead of earthen pipe, or perhaps for both of these causes. This criticism might have been avoided by a little more care in the statement of this most important feature of the case, but that the trial court ever intended to find that the earthen drain was of material proper to use in a highway covered merely with gravel or sand for about 1 foot and subject to vehicular travel of weight up to 25,000 pounds is disproved by other parts of the finding and by the memorandum of decision.

Exceptions to paragraphs 14 and 15 already recited we regard as conclusions of law, or conclusions of mixed law and fact, necessarily involved in the principal questions of law in the case, the disposition of which will determine whether these conclusions stand or fall. So that it is immaterial whether these conclusions remain a part of the finding or not, they are a part of the case and must be passed upon.

The exceptions to the finding upon which reasons of appeal are based are not in the form required by section 10 of the Rules of Court, Practice Book 1908, page 268, in that the ground or basis of exception are not stated.

The trial court held that the defect was one inhering entirely in the original plan of construction, and that the injury to the plaintiff arose out of the defective plan, and was not the result of neglect to properly maintain and repair the drain, and that the rule laid down in Hoyt v. Danbury, 69 Conn. 341, 37 A. 1051, governed and compelled a judgment for the defendants.

In their brief the defendants attempt to press an additional defense, contributory negligence. This is rested upon the fact that there was 35 feet of paved way upon which the plaintiff could have traveled, and upon the claim that the state was not obliged to keep the whole width of the highway fir for travel as long as the usual traveled part of the highway was open to travel and reasonably suited to it. Undeniably neither the state nor the municipality is under the burden of keeping all parts of a highway open to travel and reasonably safe for travel. In this case the place of accident was less than 3 feet from the paved portion of the highway and upon the same level with it, though slightly sloping toward the gutter. The paved portion of the highway was only 8 1/2 feet...