Root v. Connecticut Co.
| Decision Date | 22 December 1919 |
| Citation | 94 Conn. 227,108 A. 506 |
| Court | Connecticut Supreme Court |
| Parties | ROOT v. CONNECTICUT CO. et al. |
Case Reserved from Superior Court, New Haven County; William S Case, Judge.
Action by Charles A. Root against the Connecticut Company and another. On reservation for the advice of the Supreme Court of Errors. Judgment advised for plaintiff.
One of the highways of the trunk line system passing from Wallingford to New Haven and constructed by the highway commissioner at a point about a mile north of New Haven was crossed by a single-track line of the defendant street railway. At the point of crossing the rails were substantially at grade, crossing the highway diagonally and within the highway lines for about 100 feet.
The surface of the highway was a bitulithic macadam pavement except that on each side of the rails and within the highway lines was a row of planks 12 inches wide and imbedded in the macadam pavement.
The planks on the outside of the rails were substantially flush with the top of the rail and with the surface of the macadam while on the inside of the rails the planks were 2 [108 A. 507] to 3 inches from the rail and 2 to 3 inches below the top of the rail, but flush with the macadam surface between the rails. The planks made a more durable and better pavement to adjoin the rails than macadam. The highway surface between the rails and 2 feet outside the rails, which included these rows of planks, was constructed by the defendant company according to plans of the highway commissioner at the time this highway was constructed and in the belief that the highway commissioner had authority to require it to construct this portion of the highway.
On June 23, 1918, one of the outside planks on the northerly side of the northerly rail and in the westerly side of the highway had become rotted and worn so that there was a hole therein 18 inches long shelving to the center of the plank from both sides, leaving a portion of the rail which adjoined the hole exposed, and the hole was substantially 3 inches deep. During the night of this day two automobiles collided at or near this depression, causing injuries to plaintiff.
For the purpose of this reservation the defendants agree that the proximate cause of plaintiff's injuries was the hole in the planking, and that the planking was not maintained in proper repair or in a reasonably safe condition for public travel thereon, and by reason thereof the course of one of the automobiles was deflected by its front wheel striking the hole and turning it into the automobile in which the plaintiff was riding as the two automobiles were about to pass one another, and the collision resulted in the plaintiff sustaining injuries.
The defendant company did not lay out or construct and does not maintain or operate a railroad operated by steam power.
If the plaintiff is entitled to recover, the judgment is to be rendered in his favor for $2,250.
The term " other person" in Pub.Acts 1915, c. 307 § 3, reserving to the state, obliged to pay for an injury on trunk line highway, a right of action over against the contractor or other person through whose neglect the injury occurred, includes a street railway neglecting its duty to maintain the planking at a crossing in good condition.
Lawrence L. Lewis and Charles E. Hart, Jr., both of Waterbury, for plaintiff.
William E. Egan, of Hartford, and Frank E. Healy, Atty. Gen., for defendant Highway Com'r.
Harrison Hewitt and Harrison T. Sheldon, both of New Haven, for defendant Connecticut Co.
This action was originally brought against the defendant railway company, and came to this court upon a reservation, and thereupon was remanded to the superior court, with instruction to cause the highway commissioner to be brought in as a party defendant. This was done, and the case is now before us upon a reservation with an agreed statement of facts together with the claims of law of the parties. The primary question before us is whether the plaintiff is entitled to recover against either or both of these defendants.
The place of injury was upon a trunk line highway, and the cause a defect therein. The duty of keeping such a highway in repair was, by chapter 267 of the Public Acts of 1911, placed upon the state, and so continued at the time of this accident.
By chapter 307 of the Public Acts of 1915 the person injured through the neglect of the state to keep such highway in repair is given an action for damages against the highway commissioner, and upon paying the judgment the state is subrogated to the rights of the injured person to recover from the contractor or other person through whose neglect the injury has occurred an amount equal to the judgment it has paid. Hence it was the duty of the state, through the highway commissioner, to have repaired the defective planking, and because of its failure so to do the plaintiff suffered his injuries. The express terms of the statute make the highway commissioner liable for these injuries which have occurred through his neglect to keep the highway in repair and give the state its right of action upon the judgment paid against the person whose neglect caused the accident.
Two causes of action were set up in the single count of the substituted complaint against the defendant railway, viz., a liability to the plaintiff for injuries resulting from the defective condition of the planking through violation of its statutory duty, and through violation of its common-law duty to exercise reasonable care to keep this planking in good condition for public travel. The statutory liability " rests upon the failure to perform a governmental duty" which the General Assembly has cast upon the defendant railway. The common-law liability rests upon a different foundation-upon the failure to exercise ordinary care in the conduct of its affairs.
The plaintiff had an election which remedy to pursue (Coburn v. Connecticut Co., 84 Conn. 654, 657, 81 A. 241), or he could do as he has done, pursue each remedy under the same complaint and in a single count.
The substituted complaint and the agreed statement of facts differ. The complaint sets up that the planking was installed by the defendant as a part of its highway crossing, and that it was the duty of the railway to maintain the planking in good condition for public travel.
The agreed statement of facts omits these allegations, and merely alleges that the planking was constructed by the railway in the belief that it was required to do this. This with the facts showing the defective condition of the planking at the time of the collision are substantially all of the pertinent facts agreed to from which the negligence of the railway is claimed under the common law. If the agreed statement of facts had set forth facts which showed that the planking was a part of the railway out of which the duty of maintenance would arise, or a general allegation of the duty of maintenance, in connection with the other facts alleged, a good common-law action for negligence would have been stated. Or if, in addition to the allegation that the railway had constructed this planking in the belief that it was required to do it, and it also appeared that the railway had also maintained the planking either under a similar mistaken belief, or had voluntarily assumed the duty of maintenance in connection with the other facts, a good common-law action for negligence would have been stated. The agreed statement of facts does neither; it does not, for the reasons given, state a common-law action of negligence for the maintenance of the defective planking. Unless made so by statute, the railway is not liable to the plaintiff.
The plaintiff's cause of action matured prior to July 1, 1918, and the statutory references herein thus antedate the Revision of 1918. The plaintiff's main reliance is upon two statutes.
Counsel for the railway place its argument under two main propositions: (1) That the railway owes no duty to keep any portion of the highway in repair; and (2) that it is not liable in damages for an injury caused by a defect in the surface of a trunk line highway. We will take up in this order the principal features of the argument in support of these claims.
Section 3837, it is said, refers exclusively to municipal highways and not to trunk line highways, and that the enactment of the trunk line highway legislation has placed this kind of highway in a class by itself, and not subject to the provisions of section 3837 and chapter 66 of the Public Acts of 1917,...
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White v. Burns
...and consistent with the sole proximate cause standard in a cause of action brought under § 13a-144. Our decision in Root v. Connecticut Co., 94 Conn. 227, 108 A. 506 (1919), does not, as the plaintiff suggests, require the contrary. The plain language of § 13a-144 does not, we conclude, sho......
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Veits v. City Of Hartford
...471; negligence of, and breach of a statutory duty, by, a street railway company as regards a defect in the highway, Root v. Connecticut Co., 94 Conn. 227, 232, 108 A. 506; a recovery of money on the basis that it was obtained by undue influence or that it was loaned, Raymond v. Bailey, 98 ......
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De Capua v. City of New Haven
...defendant's common-law duty to exercise reasonable care to keep this planking in good condition for public travel. We said, 94 Conn. at page 231,108 A. at page 507, citing Coburn case: ‘ The statutory liability ‘ rests upon the failure to perform a governmental duty’ which the General Assem......
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