Porpora v. City of New Haven

• Decision Date: 09 October 1936
• Citation: 122 Conn. 80,187 A. 668
• Court: Connecticut Supreme Court
• Parties: PORPORA v. CITY OF NEW HAVEN.

187 A. 668

122 Conn. 80

PORPORA v. CITY OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

October 9, 1936

Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.

Action by Anthony Porpora, administrator, against the City of New Haven, to recover damages for the death of plaintiff's intestate, alleged to have been caused by a defective bridge. From a judgment for plaintiff, defendant appeals.

No error.

Thomas R. Robinson, Vincent P. Dooley, and David J McCoy, all of New Haven, for appellant.

William F. Geenty, Thomas R. FitzSimmons, and Samuel M. Gordon, all of New Haven, for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

AVERY Judge.

On September 14, 1933, at about 6:45 a. m. daylight saving time, the plaintiff's decedent, Pasquale Porpora, was driving a small truck from New Haven to East Haven. While crossing the Tomlinson Bridge the truck plunged through the railing on the north side and fell into the water, and the plaintiff's decedent was drowned. The plaintiff, as his administrator, brought an action to recover for his death, alleging, among other things, that the defendant had failed to erect and maintain a sufficient railing or fence so as to make the highway reasonably safe for travel. The case was tried to the jury and a verdict was returned for the defendant, but on the appeal we found error (Porpora v. New Haven, 119 Conn. 476, 177 A. 531), and the cause was remanded for a new trial. The case was thereafter tried to the court and judgment returned for the plaintiff, from which the defendant has appealed.

The trial court concluded that the city of New Haven had failed in its duty to provide a sufficient fence upon the bridge and that, at the time of the accident, plaintiff's intestate was operating his automobile as a reasonably prudent driver would under the circumstances and was free from contributory negligence. On this appeal, the defendant seeks to destroy these conclusions by corrections of the finding, seeking to add certain paragraphs of the draft finding to the subordinate facts found by the court, and to strike from the finding certain facts found. The appellant further contends that the court did not correctly determine the statutory duty imposed upon the defendant in reference to the maintenance of the bridge in question; and, further, that under our statutes (General Statutes, §§ 1419, 1420, 5987 and 6030) no cause of action exists in favor of the administrator of a decedent who is killed by reason of a defective bridge.

From an examination of the evidence certified, it appears that the appellant is entitled to some of the corrections in the finding of subordinate facts as made by the trial court, but no correction is permissible which would affect the basic conclusions which are established by the following facts, appearing in the finding, and which are fully supported by the evidence: The movable portion of the bridge consists of two lifts approximately 70 feet in length. The road surface is 42 feet wide and on each edge is a sidewalk 9 feet in width elevated 6 inches above the roadway by a curb, the top of which is flush with the surface of the sidewalk and has a smooth round nosing. On the outside edge of each lift is a railing 3 feet in height constructed of cast iron posts which are fixed to the floor of the bridge. The posts are set 13 feet apart center to center, and there are six upon each side of each lift. They have an external diameter of 4 inches and an internal diameter of 3 inches, with two rails of wrought iron pipe, having an external diameter of 3 inches, running horizontally at the top and bottom of each post. Each end of these rails is affixed to one of the upright posts by one one-quarter inch steel rivet. Between the rails are steel pickets three-quarters of an inch in diameter. This railing was designed for the sole purpose of preventing pedestrians from falling into the water, and was not adaptable to prevent automobiles from leaving the highway when out of control as a result of skidding due to mishap or mischance, naturally incident to traffic, which may arise from unforeseen circumstances, and the only protection provided to prevent moving automobiles from leaving the highway in such event was the 6-inch curb above mentioned. There are double trolley tracks in the roadway and a crossover about 60 feet west from the lift portion of the bridge. At that point, there is a seam in the highway extending its entire width and located where the bridge approach and the causeway to the bridge join.

The plaintiff's decedent was operating his automobile at a speed of about 30 miles an hour on his right-hand side of the road. There was no traffic on the highway at the time, but it was raining and the surface was slippery. As he approached the west end of the bridge, he turned to the left onto the trolley rails to avoid the seam. As he did so, his truck skidded, veered to the south and struck the gate about 25 feet from the lift portion of the bridge. The truck was then deflected from the gate, skidded and traveled at an angle of about 45 degrees across the west lift of the bridge, over the northerly curb and sidewalk and into the river. The curb or railing on the bridge did not retard the progress of the truck to any noticeable degree. There is support in the evidence for the trial court's conclusion that the defendant had failed in its duty to provide a sufficient railing upon the bridge to render it reasonably safe for public travel. The trial court found that there was nothing unusual in the manner in which the deceased was operating his truck, and that in getting on or off the trolley tracks it started to skid. Upon the facts found and the evidence certified, the conclusion that the decedent was in the exercise of due care and free from contributory negligence was within the province of the trial court. We cannot say that as a matter of law the speed at which the automobile was proceeding was so excessive under the circumstances as to constitute negligence, nor would the fact that the car skidded on the wet and slippery road necessarily show negligence. Shinville v. Hanscom, 116 Conn. 672, 673, 166 A. 398.

The appellant contends that no recovery may be had for death resulting from a defective highway or an insufficient railing on a bridge under the law of this state. The substance of this claim is that General Statutes, §§ 1419 and 1420, the applicable parts of which are appended in footnote ^(a), are penal in their nature, and a cause of action created by them does not survive after the death of the plaintiff. These statutes are to be read in connection with that part of section 5987 and section 6030 appended in footnote ^(b)

^(a). " Section 1419. Bridges and Roads to have Railings . The party bound to maintain any bridge or road shall erect and maintain a sufficient railing or fence on the side of such bridge, and of such parts of such road as are so made or raised above the adjoining ground as to be unsafe for travel; and whoever shall suffer damage in his person or property by reason of the want of any such railing or fence may recover damages from such party."

" Section 1420. Damages for Injuries by Defective Roads or Bridges . Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair; ***"

^(b). " Section 5987. Actions for Injuries Resulting in Death; Damages . In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, or whether caused by the negligence of the defendant or by his wilful, malicious or felonious act, such executor or administrator may recover from the party legally at fault for such injuries just damages not exceeding ten thousand dollars. ***"

" Section 6030. Survival of Actions and Causes of Action . No cause or right of action shall be lost or destroyed by the death of any person, but it shall survive in favor of or against the executor or administrator of such deceased person. No civil action or proceeding shall abate by reason of the death of any party thereto, but it may be continued by or against the executor or administrator of such decedent. In case of the death of any party plaintiff, his executor or administrator may enter within six months thereafter and prosecute the suit in the same manner as his testator or intestate might have done if he had lived; and, in case of the death of any party defendant, the plaintiff may have a writ of scire facias against such decedent's executor or administrator to show cause why judgment should not be rendered against him, which shall be served at least twelve days before the day upon which it is returnable, and upon its return the action may proceed. The provisions of this section shall not apply to any cause or right of action or to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto; nor to any civil action or proceeding whose prosecution or defense shall depend upon the continued existence of the persons who are plaintiffs or defendants; nor to any civil action upon a penal statute."

The forceful arguments presented upon this issue have led us to re-examine the extent to which under our law causes of action survive. Previous to 1848 we had no statute permitting a recovery of damages due to death by wrongful act, although there were statutes providing that pending actions, with certain exceptions, should not abate upon death. Compilation of 1838, pp. 49, 75. There was a statute, which had originated in 1808, providing for a recovery of a fixed sum for death due to a defect in a highway. Revision of 1808, ...