Seidel v. Town of Woodbury

• Decision Date: 04 June 1908
• Citation: 81 Conn. 65,70 A. 58
• Parties: SEIDEL v. TOWN OF WOODBURY.
• Court: Connecticut Supreme Court

70 A. 58

81 Conn. 65

SEIDEL

v. TOWN OF WOODBURY.

Supreme Court of Errors of Connecticut.

June 4, 1908.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Joseph Seidel, as administrator, against the town of Woodbury, for damages for the death of plaintiff's intestate. From a judgment for plaintiff, defendant appeals. Error. Judgment reversed, and cause remanded.

John H. Cassidy, for appellant.

John O'Neill, for appellee.

HAMERSLEY, J. The construction and repair of highways is a governmental duty belonging to the state. It can only be performed through agents of the state. Those agents may be state officers designated for that purpose, and may be municipal corporations, upon whom the performance of the duty is imposed by law. In either case, the travelers who use the highway have no legal right to any indemnity from the state against the dangers of an insufficient highway. In 1672, however, such indemnity was provided for, but only in the manner and to the extent specified in the statute. In that year the state imposed upon towns the duty of constructing and maintaining needful highways. Obedience to this mandate might be enforced by indictment, and other means of enforcement were, from time to time, provided. But the statute also provided that, upon the concurrence of certain events, a traveler, injured in the use of the highway, might receive indemnity from the state, and that the town which had neglected its statutory duty should, as a penalty for that offense, pay the indemnity, and that this penalty might be enforced in an action on the statute brought by the injured traveler. Acts 1672, p. 7. The concurring events upon which the town's liability to such a penalty can arise are fixed by statute, and are these: (1) A defect in the highway; i. e., by want of sufficient repair it is unfit for safe use as a highway. (2) A failure or neglect by the town to make such sufficient repair, involving the questions of reasonable notice and knowledge, and reasonable time. (3) An injury caused through or by means of the defect. (4) Such injury to a person in passing over a highway; i. e., while in the lawful use of the way. No liability on the part of a town to pay the statutory penalty can arise unless upon the concurrence of all these events. We have held that the statute imposing this penalty upon towns is a penal one, and cannot be extended by construction beyond the plain meaning of its words. This meaning of the statute is well settled, and has been fully restated in some recent decisions. Bartram v. Town of Sharon, 71 Conn. 686, 694, 43 Atl. 143, 46 L. R. A. 144, 71 Am. St. Rep. 225; Makepeace v. Waterbury, 74 Conn. 360, 362, 50 Atl. 876; Upton v. Windham, 75 Conn. 288, 291, 53 Atl. 660, 96 Am. St. Rep. 197.

The duty imposed upon the town is to construct needful bridges and highways and to maintain in good and sufficient repair such bridges and highways. The governmental duty and penalty for neglect is imposed upon all towns, except in cases where a particular person is bound to keep the highway in repair, and in the case of cities charged by charter with construction and repair of highways, and specially authorized to exercise a judgment in the mode of construction of a quasi judicial character, a structural defect, the result of an error of judgment, may not incur the statutory penalty, unless, indeed, the plan of construction adopted be one which is totally inadmissible. Hoyt v. City of Danbury, 69 Conn. 341, 351, 37 Atl. 1051. And in the case of a town whose officers must exercise some discretion in the mode of construction, it is manifest that the question whether or not a highway is defective by reason of inadmissible construction may be affected by considerations somewhat different from those which determine the question of necessary repair.

In the present case the main contested question relates to the existence of a defect. Was the highway at the place and time of the accident in sufficient repair; that is, was it reasonably adapted for safe use as a highway, in view of its location and the amount and kind of travel it was built to serve? The specific facts found by the trial court, and upon which its judgment is based, are set forth in the finding, in the memorandum of decision, which is made a part of the finding. The facts in respect to the construction and repair of the highway at the place of the accident are as follows: The highway runs north and south. For a short distance northerly and southerly of the point where the accident happened the town constructed the highway in the following manner: The highway was 56 feet wide between fences. The regular traveled track and footway occupied about 16 feet, the east side being about 17 feet distant from the east fence of the highway, and the west side about 23 feet distant from the west fence. On the east side of the traveled track was a gutter, from which sloped eastward a bank about 12 feet high. Westerly of the traveled track (which was about 11 1/2 feet wide) was a space 4 or 5 feet wide, with a slight upper grade, upon which was the footpath. Next westerly of the footpath was the westerly shoulder of the road, which was raised slightly above the level of the footpath. From this shoulder the ground tell about 2 feet, measured perpendicularly in a horizontal width of about 2% feet, and then sloped at a slightly descending grade for about 20 feet, to the west side of the highway. No railing had been erected on the west side of the traveled track at this place to prevent persons, traveling in said track, from going off from the same. At the time of the accident there was nothing about the ground west of the shoulder of the traveled road material to the case, unless a rock, about 1 1/2 feet high, which was some 10 or 12 feet westerly of the west shoulder. And the court finds proven (although not included in the finding) the further fact that the road was thus constructed many years previously, and no complaint had ever been made to the town of danger existing at this part of the highway.

The duty imposed by the act of 1672, now in force as section 2013 of the Revision of 1902, is this: Towns shall build and maintain, in good and sufficient repair, all the needful highways and bridges within their respective townships. If a highway, constructed or maintained in the manner indicated by the specific acts found by the court, violates the duty thus imposed upon towns, then the highway is defective, or insufficient within the meaning of that part of the act of 1672 now in force as section 2020 of the General Statutes of 1902. The real question, therefore, arising upon the facts' found by the court, was whether a highway 56 feet in width, constructed with a traveled track or worked roadbed running through its central portion, leaving the other parts of the highway un-worked, in the manner described, is reasonably safe for travel in view of the purposes for which it is needed and used. A populous city, which worked only a narrow strip through the center of its streets, leaving the remaining portions rough and unworked, would doubtless fail to perform the duty imposed by the act. But not so with country towns, especially with those of large area and small population. In such towns a highway worked throughout its limits is the exception. "Towns are not obliged to keep the whole width of the highways free from all obstructions and in good condition for being driven upon." Burr v. Town of Plymouth, 48 Conn. 460, 472. But travelers may be obliged, by reason of events naturally incident to travel, to pass from the wrought to the unwrought part of the highway. And a highway so constructed that such exceptional departure from the traveled track must involve unnecessary and serious danger may be defective Within the meaning of the statute. The real question, therefore, in the present case, was whether the difference of 2 feet between the level of the traveled track and that of the unwrought portion of the highway and the slope of the ground, from the former to the latter, was so unnecessarily dangerous to any traveler who might be forced to leave the track that the statute imposed upon the town the duty of providing against such danger, by widening the way, or lessening the slope of the ground, or otherwise. This question the trial court did not decide, and apparently did not consider. The neglect of duty found by the court was not a neglect of the duty imposed by the act of 1672, in force as section 2013 of the General Statutes of 1902, in respect to a highway constructed and situated as this highway was, but a neglect of the special and peculiar duty imposed by an act passed in 1801, now in force as section 2019 of the General Statutes of 1902. This act commanded the doing of a specific, definite act; i. e., the erection of a fence in respect to highways which might be constructed and situated in a manner different from that in which it appears, from the facts found by the court, the highway in question was constructed and situated. This misconception doubtless arose in part from the peculiar allegations of the complaint. It may be that the complaint sufficiently alleges a neglect by the town of the duty...