Porpora v. City of New Haven

• Decision Date: 06 February 1935
• Citation: 119 Conn. 476,177 A. 531
• Court: Connecticut Supreme Court
• Parties: PORPORA v. CITY OF NEW HAVEN.

177 A. 531

119 Conn. 476

PORPORA v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

February 6, 1935

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Action by Anthony Porpora, administrator of the estate of Pasquale Porpora, against the City of New Haven, to recover damages for the death of plaintiff's intestate and for injuries to his automobile alleged to have been caused by a defective highway, tried before a jury in the superior court in New Haven county. From a judgment in favor of defendant plaintiff appeals.

Judgment set aside, and new trial ordered.

William F. Geenty, and Thomas R. Fitzsimmons, both of New Haven, for appellant.

Vincent P. Dooley and David J. McCoy, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and INGLIS, JJ.

MALTBIE, Chief Justice.

The plaintiff's decedent was killed when a small truck he was driving struck the railing on the north side of the Tomlinson bridge on Water street in New Haven, and, demolishing the railing, fell into the water below. The truck, proceeding in an easterly direction, came into contact with a gate on the southerly side of the highway, which was used to stop traffic when the draw in the bridge was raised, but at the time was swung back so as to leave the roadway open. The contact with the gate deflected the course of the truck to its left, it then straightened out and ran along some trolley tracks in the street for several feet, then again veered to the left, ran off the portion of the highway designed for vehicles, crossed the sidewalk, and so struck the railing. The plaintiff claimed that the gate was not swung back out of the way of vehicular traffic, but that the end protruded some nine inches into the used portion of the way; and he claimed a twofold cause of action, first, under the provisions of section 1420 of the General Statutes, on the ground that the highway was defective due to the manner in which the gate protruded, and, second, under the provisions of section 1419 of the General Statutes, on the ground that the railing of the bridge was insufficient. From a verdict and judgment for the defendant, the plaintiff has appealed, claiming errors in the failure of the trial court to give certain requests to charge and in the charge as given.

One ground of claimed error is that the trial court, in disregard of the provisions of section 1149b of the General Statutes, Cum. Supp. 1933, which is quoted in the footnote, ^[1] charged the jury that the burden was upon the plaintiff to prove the decedent's freedom from contributory negligence. This statute was undoubtedly enacted as a result of our decision in Kotler v. Lalley, 112 Conn. 86, 151 A. 433, in which both the majority and minority opinions agree that where a person is killed by the claimed negligent action of another, and there are no witnesses of the accident except the defendant, the rule placing the burden to prove lack of contributory negligence upon the plaintiff is unjust. It was pointed out in the minority opinion in that case that in such a situation the rule might give a great advantage to a defendant charged with negligence because the lips of the plaintiff's decedent were stilled by death; and that the underlying purpose of the statute was to prevent such a situation is patent from its concluding provision, that it should not apply where the person charged with negligence died as a result of the acts complained of. The statute applies only to actions to recover damages " for negligently causing" the death of a person, or for " negligently causing injury to a person."

Sections 1419 and 1420 of the General Statutes impose upon towns a liability for damages where they fail, under certain circumstances, to erect " a sufficient railing or fence" upon the side of a bridge or where a person is injured " by means of a defective road or bridge." The liability so imposed is one not known to the common law; it is a liability based upon the breach of a statutory duty. In determining whether the town is liable under the statutes, by process of judicial construction, the test of the sufficiency of a fence or railing or of a defective condition in a highway has come to be measured largely by the same test of reasonable care by which conduct in negligence actions is judged. However, the cause of action under the statute is not really one to recover damages for an injury caused by negligence, but for one caused by the breach of a statutory duty. Bartram v. Town of Sharon, 71 Conn. 686, 43 A. 143, 46 L.R.A. 144, 71 Am.St.Rep. 225; Gustafson v. City of Meriden, 103 Conn. 598, 603, 131 A. 437, 488; Frechette v. City of New Haven, 104 Conn. 83, 87, 132 A. 467; Horton v. Macdonald, 105 Conn. 356, 361, 135 A. 442; Riccio v. Town of Plainville, 106 Conn. 61, 63, 136 A. 872; Dunn v. MacDonald, 110 Conn. 68, 78, 147 A. 26. The reason why contributory negligence of the plaintiff will defeat recovery is that where it occurs the defective condition of the highway cannot be said to be the cause of the injury; indeed, the distinction between an action to recover for a highway defect and one for recovery of damages for injury negligently caused is perhaps most clearly seen in the fact that the concurring negligence of a third party will defeat the former, but not the latter. Bartram v. Town of Sharon, supra, page 695 of 71 Conn., 43 A. 143. Usually no representative of the defendant municipality is present at the time of the accident; and the death of...