Rusch v. Cox.
| Decision Date | 06 April 1943 |
| Citation | 31 A.2d 457,130 Conn. 26 |
| Court | Connecticut Supreme Court |
| Parties | RUSCH v. COX. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, New London County; O'Sullivan, Judge.
Action by Andrew J. Rusch, administrator of the estate of Frederick A. Rusch, against William J. Cox, Highway Commissioner, to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant, tried to the court. During the trial the defendant asked for a continuance and filed a motion for permission to amend his answer. These requests were denied; judgment for the plaintiff, and appeal by the defendant.
No error.
Robert L. Halloran, of Hartford, for appellant.
George C. Morgan, of New London, for appellee.
Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.
The complaint alleged that the death of the plaintiff's intestate was caused by a defective highway. The answer was a general denial. When the case was called for trial, the defendant asked for a continuance on the ground of absent witnesses. The trial was to the court and the court denied the request stating that the defendant would be given an opportunity to present the witnesses at a subsequent date. Trial was commenced and on the following day the defendant again asked for a continuance on the ground of newly discovered evidence and moved for permission to amend his answer to accord with this evidence. The court denied both requests and the trial proceeded. During the trial it appeared that the defendant had been suspended as highway commissioner. After the conclusion of the trial, a deposition was taken of an absent witness, the deposition was returned to court, opened by the trial judge and considered with the evidence adduced at trial. Judgment was rendered for the plaintiff from which the defendant appealed to this court.
The defendant prefaces his brief with six issues he considers involved in the case and pursues certain other assignments of error. Briefly, the issues so stated are these: the refusal of the trial court to grant the motions for a continuance and for permission to amend the answer; the refusal of the court to permit the defendant to take advantage of a statutory defense to the action which was not pleaded; the court's jurisdiction over the defendant in view of his suspension as highway commissioner; the treatment of the deposition by the court; the court's conclusion that the highway was defective and the violation of the defendant's statutory duty as to its care was the sole cause of the death of the plaintiff's intestate.
We state the facts as they appear in the finding, in which no material change can be made. The plaintiff's intestate was a passenger in a car being driven in the night season by a companion in an easterly direction on the Boston Post Road, a trunk-line highway, in the town of Waterford. The headlights of the car were on and it was traveling at a speed of between 30 and 35 miles an hour. A large truck approached from the opposite direction. The driver of the decedent's car turned to his right to give the truck a wide berth. This brought the left wheels of his car to the southerly edge of the concrete (which was 20 feet in width) and the right wheels about four feet south of this edge. About four feet farther to the south was a wire guardrail or cable fence. Between the concrete and the cable fence was an oiled shoulder of the highway about eight feet in width. The fence ended at a passway into an adjoining meadow. There was a gap of about 45 feet and then began a wooden fence which continued along the highway. The first post of this fence was in line with the cable fence referred to before, but the second post was about four feet nearer the concrete. Between these two posts, two nine-foot board railings were nailed, one at the top of the posts and the other halfway to the ground. This construction formed an angle facing eastbound traffic and narrowed the southerly shoulder of the highway from eight feet four inches to four feet. The driver of the car in which the plaintiff's intestate was riding, passing the eastern end of the cable fence and the gap, failed to see the western end of the wooden fence until it was immediately in front of him. Just as his car and the truck were passing each other, the car struck the second post, referred to above, of the wooden fence. A fence rail pierced the windshield of the car and struck the plaintiff's intestate who sat, asleep, on the driver's right, causing his death. The driver had never operated a car easterly over this stretch of road and there were no signs warning of the narrowing of the road. The eight-foot shoulder extended from the eastern end of the cable fence for a distance of about 170 feet to the west. In 1938 the State Highway Department had ordered the reconstruction of all wooden fences in this district and work had been started there on August 15, 1938. In connection with the work a sign had been placed one and three-tenths of a mile west of the point of collision and about eight feet south of the concrete. The sign was about four feet by three feet in size and was visible for 500 feet from the west, and each night a lighted red lantern was attached to it. The printing on it was as follows: First line, ‘Caution’ (eight-inch letters); second line, ‘Guard Rail’ (six-inch letters); third line, ‘Under Repair’ (six-inch letters); down at the left corner, ‘Section 1513, Public Acts of 1930,’ beneath which appeared, ‘Per Order of the State Highway Commissioner’ (one and one-fourth inch letters). At the time of the collision, construction work was being done on guardrails eight-tenths of a mile west of the place of collision.
The trial court concluded that the ‘staggering’ or variation in alignment of the two fences created a dangerous and defective condition in the highway, and while the chief claim of the plaintiff on trial was that the wooden fence was rotten and defective in condition his complaint sets up the location of the fence as a cause of the collision and furnishes support for a recovery on this ground. We may not hold that the conclusion of the trial court that the staggering of the fences under the circumstances constituted a defective road was unreasonable, as a matter of law. Nor can we say that its further conclusion that no negligence of the plaintiff's intestate or his driver contributed to cause the collision was not justified. Johnson v. Shattuck, 125 Conn. 60, 62, 3 A.2d 229. The sign was far from the scene of the collision and gave no warning of a narrowing of the highway; the broad shoulder beside the cable fence invited travel in the face of the approaching truck and, while the driver did not see the fence or post until it was right in front of him, the trial court might reasonably have found that the driver had no reason to expect the presence of the wooden fence and that when he should reasonably have seen it, it was too late to avoid the collision.
As to the refusal of the court to grant a continuance and to permit an amendment to the answer, it appears that the action had been pending three years; that it had been assigned for trial to be heard February 17, 1942; that on that day defendant's counsel objected to proceeding to trial because of the absence of witnesses whose deposition might be necessary but the court denied the motion stating that if, when the available witnesses were exhausted, it appeared that time was needed to obtain the testimony of other witnesses the defendant would be given an opportunity to do this. The trial then proceeded. On the following day defendant's counsel again moved for a continuance, this time on ground of newly discovered evidence (the existence of the sign mentioned above), and further moved for permission to amend his answer in this connection. Both motions were denied, the court calling attention to the fact that the case had been pending three years and the plaintiff had been ‘lulled apparently into security’ that he would try the case on the complaint as drawn and would now be confronted with the difficult task of getting evidence to meet the proposed amendment. Motions for a continuance are within the discretion of the trial court and their denial is not error unless that discretion is abused. Allen v. Chase, 81 Conn. 474, 71 A. 367; State v. McLaughlin, 126 Conn. 257, 260, 10 A.2d 758. As to amendments, we said in Clayton v. Clayton, 115 Conn. 683, 686, 163 A. 458, 459, that unless there is some sound reason for denying permission to amend it should be granted, but we added that when an amendment is...
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...to the state as the defendant." Id. (citing Anselmo v. Cox, 135 Conn. 78, 79-80 (1948), cert. denied, 335 U.S. 859 (1948); Rusch v. Cox, 130 Conn. 26, 34 (1943)). It thus follows that, if construed as a state common law action, Count Five is barred by the Eleventh Amendment as to NCC and th......
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