Shirlock v. MacDonald

• Decision Date: 10 July 1936
• Citation: 186 A. 562,121 Conn. 611
• Court: Connecticut Supreme Court
• Parties: SHIRLOCK v. MacDONALD, Highway Commissioner.

186 A. 562

121 Conn. 611

SHIRLOCK v. MacDONALD, Highway Commissioner.

Supreme Court of Errors of Connecticut.

July 10, 1936

Appeal from Court of Common Pleas, Hartford County; Abraham S Bordon, Judge.

Action by Clara Shirlock against John A. MacDonald, Highway Commissioner, to recover damages for injuries to a motortruck, alleged to have been caused by a defective bridge, brought to the court of common pleas and tried to the court. Judgment for the defendant, and the plaintiff appeals.

No error.

Albert B. Walker, of Hartford, for appellant.

Olcott D. Smith, of Hartford, for appellee.

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

HINMAN, Judge.

The bridge to which this action relates is located on a state highway in the town of Canton, and is under the control and supervision of the defendant. Shortly after noon on September 17, 1934, while the plaintiff's truck, which weighed about 8,700 pounds, empty, was being driven across this bridge it suddenly gave way; the floor dropped some distance and the truck was damaged. The finding states that there had been an unusually severe rainfall, commencing in the previous night and continuing up to the time of the accident, which had caused the brook crossed by the bridge to rise so that as plaintiff's driver approached it, the water overflowed the floor about 6 inches. About 20 minutes previous another truck of the plaintiff weighing, with load, over 16,000 pounds, had crossed in safety. This bridge is one of 3028 which are under the control of the highway commissioner, all of which are inspected once a year by a competent engineer, and, if repairs are necessary, another inspection is made after the repairs have been completed. This bridge was so inspected, on May 1, 1934, by the chief bridge inspection engineer and found to be in good condition.

The plaintiff presented no evidence as to the cause of the accident or of any specific act, neglect, or omission on the part of the defendant which was a substantial factor therein. She claimed, however, that the doctrine of res ipsa loquitur was available, and that, by virtue of it, by showing that the bridge gave way when her truck was driven upon it, she made out a prima facie case, and assigns error in the trial court's ruling that this doctrine did not apply.

This action is specifically, and necessarily, brought under section 1481 of the General Statutes, which affords a right of recovery from the state, through the highway commissioner as its representative, similar to that given by another statute (section 1420) against municipal corporations for damages from defective highways, and is subject to like limitations. Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890; Falkowski v. MacDonald, 116 Conn. 241, 243, 164 A. 650. A cause of action under either of these statutes is not really one to recover damages for an injury arising from negligence, but for breach of a statutory duty. Porpora v. New Haven, 119 Conn. 476, 479, 177 A. 531; Bartram v. Sharon, 71 Conn. 686, 43 A. 143, 46 L.R.A. 144, 71 Am.St.Rep. 225. Thus the present action is for damages alleged to have arisen from breach of duty imposed by a statute, now section 523c, Cum.Supp.1935, and which was section 398b, Cum.Supp.1933, at the time of the injury.

In a case seeking recovery for damage from defects in a highway, it is a prerequisite of liability that the authority charged with maintenance shall have had either actual notice of the defect or constructive notice through its existence for such a length of time that it would have been known in the exercise of reasonable care, and a reasonable opportunity afforded to remedy it. Falkowski v. MacDonald, supra, 116 Conn. 241, at page 243, 164 A. 650. Here, similarly, it must be shown that the deficiency which occasioned the subsidence of the bridge was of such duration that reasonable care in inspection would have disclosed it, and that thereafter reasonable opportunity was had to remedy it. The doctrine of res ipsa loquitur is applicable in negligence actions when the concurrence of specified conditions justify the inference, from proof of injury, that " it could not in the general experience have happened unless there had been a want of due care." Schiesel v. S. Z. Poli Realty Co., 108 Conn. 115, 121, 142 A. 812, 814; Jump v. Ensign-Bickford Co., 117 Conn. 110, 120, 167 A. 90. One (the second) of these conditions is that not only the inspection but also the " user" must have been at the time of the injury in the control of the party charged with neglect. Jump v. Ensign-Bickford Co., supra, 117 Conn. 110, at page 121, 167 A. 90. It is obvious that the highway commissioner does not have such a relation and duty to each and all of the more than 3,000 bridges within his jurisdiction as would afford him the continuous knowledge of conditions developing or occurring which is contemplated by the user which this element of the rule requires. This is sufficient to render the doctrine inappropriate and inapplicable in the present action, and the trial court did not err in so concluding.

The statute, section 398b Cum.Supp. 1933, upon an alleged breach of which this action is grounded, provides that: " Each highway bridge existing July 1, 1921, maintained by the state, in whole or in part, shall be so maintained as to insure a safe carrying capacity of not less than eight tons, and each such bridge constructed thereafter shall maintain a safe carrying capacity of...