Rodgers v. Cox.

• Decision Date: 02 March 1944
• Citation: 130 Conn. 616,36 A.2d 373
• Court: Connecticut Supreme Court
• Parties: RODGERS et al. v. COX.

130 Conn. 616

36 A.2d 373

RODGERS et al.

v.COX.

Supreme Court of Errors of Connecticut.

March 2, 1944.

Appeal from Superior Court, Hartford County; O'Sullivan, Judge.

Action by Wilfred J. Rodgers and another against William J. Cox to recover damages for injuries to person and property allegedly caused by defective highway and by a nuisance. From a judgment for defendant, plaintiffs appeal.

No error.

Louis Feinmark and Philip R. Shiff, both of New Haven, for appellants.

William H. Tribou and Edward I. Taylor, both of Hartford, for appellee.

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

DICKENSON, Judge.

The trial court found that the plaintiffs suffered damages as a result of a defective highway maintained by the defendant which constituted a nuisance, but that the defendant was not liable because he had posted warning signs as provided by General Statutes, § 1513, and the plaintiffs consequently had assumed the risk of injury in traveling over it. The plaintiffs have appealed, claiming that the posting was inadequate and that the sign would not give the defendant immunity as regards a defect in the highway not related to construction work.

The plaintiffs seek several additions to or corrections in the finding, but no material change may be made in it. Only two of the claims require specific mention. The court found that the sign was located so that it was within the line of vision of an approaching motorist and was partly illuminated by red lanterns. This finding is supported by evidence and inferences reasonably deduced from it and cannot be disturbed. The plaintiffs claim an addition to the finding to the effect that the posting was solely for construction work and not for existing defects and that the plaintiff operator had no warning that the highway was closed or defective and did not assume the risk of injury. These are mixed statements of law and fact involving conflicting evidence. The court was not in error in failing to include them in the finding.

The facts are as follows: On November 14, 1940, at about 4:30 a. m. the plaintiff Rodgers was operating a tractor-trailer belonging to the other two plaintiffs northerly on a trunk-line highway in East Hartford. The tractor-trailer with its load weighed about twenty tons. It was raining, visibility was poor and the highway was wet and icy. Beginning a mile and a half south of the point of accident, this highway, known as Route No. 15, consisted of macadam roads running north and south separated by a parkway, each road being about twenty feet in width. About one-half of a mile farther north the two roads merged into one two-lane highway. This single road continued for about one mile, where the macadam surface ended. Seventy-five feet farther north was the southerly end of a four-lane concrete parkway. Connecting the macadam road with the concrete parkway was a stretch of oiled gravel road. On October 15, 1940, the defendant contracted for a southerly extension of the concrete parkway including the seventy-five-foot gravel stretch. Work was begun on this contract October 24, 1940, by clearing the ground beyond the shoulders and laying drains, and graders, bulldozers, steam shovels and other equipment had been brought on the job by the contractors for this purpose. It was agreed, however, between the defendant and the contractors that the surface of the existing macadam road and gravel stretch should not be disturbed until the spring of 1941, and no work had been done on it at the time of the accident. Before the contractors began work, the defendant caused signs to be erected to close the road to traffic in conformity with General Statutes, § 1513, and these signs were in place at the time of the accident. They were eight feet square, painted white with black lettering, and read as follows: ‘Caution-1 1/2 miles of construction work. This sign legally closes this road to traffic under Chapter 80 section 1513 General Statutes of 1930. Pass at your own risk. State Highway Commissioner.’ One of these signs was erected just south of the southerly end of the section to be reconstructed and is pictured in photographs in evidence. It was placed on the parkway, facing approaching traffic, within three or four feet of the traveled portion of the northbound lane, to the left of approaching vehicles which had to pass it to proceed over the section to be reconstructed. The plaintiff Rodgers, operating the tractor, which had a left-hand drive, approached and passed this sign. At the time, two lighted red lanterns were hanging one on each side of the signboard, four or five feet from the ground and visible to operators of northbound traffic. Other than that cast by the lanterns, there was no illumination on the signboard. No evidence was offered as to the effect of automobile headlights in illuminating the sign.

The plaintiff operator...