Smith v. Town of Milford

• Decision Date: 21 December 1914
• Citation: 92 A. 675,89 Conn. 24
• Court: Connecticut Supreme Court
• Parties: SMITH v. TOWN OF MILFORD.

92 A. 675

89 Conn. 24

SMITH

v. TOWN OF MILFORD.

Supreme Court of Errors of Connecticut.

Dec. 21, 1914.

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Action by Annie M. Smith against the Town of Milford to recover damages for personal injuries sustained by falling into an unguarded excavation adjoining a sidewalk. Facts found and judgment rendered for plaintiff, and defendant appeals. Affirmed.

The complaint contained two counts. The first alleged that a portion of a certain highway used as a sidewalk at the place where the plaintiff was injured was so raised above the adjoining ground as to endanger the safety of travelers thereon without a railing or fence upon the side of the highway so elevated, which it was the duty of the defendant to provide. The second count alleged that the existence of an excavation immediately adjacent to the portion of the highway which was used as a sidewalk rendered this highway defective and dangerous without a railing or fence to protect travelers in their use of the highway. The trial court, from a personal view of the premises, and the evidence, found the issues for the plaintiff.

The finding of the material facts was as follows: West Town street in the town of Milford is a public highway, and has been a public highway for many years. Prior to 1894 it crossed the railroad tracks of the New York, New Haven & Hartford Railroad Company at grade. About 1894 the railroad company, in installing its four-track improvement through Milford, eliminated West Town street grade crossing, and diverted West Town street at the point of intersection with the railroad to the west, so that West Town street passed under the railroad tracks at a bridge just to the west of the grade crossing. The railroad company owns the land immediately east of West Town street. In making the improvements about the year 1894 it excavated upon its own land, and made the embankment that is the cause of this litigation. This excavation and embankment are in substantially the same condition as they were at the time they were made. The street or passageway leading from West Town street in an easterly direction and immediately to the north of the railroad tracks is a private way, owned by the railroad company. This path divides, a small and narrow path continues straight along, and a wider path turns to the west. The plaintiff intended to proceed along the narrow path, but when she got some little distance beyond the point where the path divides, she suddenly and accidentally, in consequence of the want of a railing at that place, stepped off the embankment and fell. The excavation, or hole, was about 3 1/2 feet from the path upon which she was walking when she fell. West Town street, at and near the place in question, is commonly used only by people who have occasion to go from that part of the outlying districts of the town to the freight station of the railroad, a manufacturing concern, or the passenger station. The sidewalk at this point is also Commonly used only by pedestrians for the same purposes. West Town street branches west at this point and the main bulk of the travel proceeds under the railroad track toward the center of Milford. This street at this point where the plaintiff was injured was unsafe for the want of railing or fence. At about 5:30 o'clock in the evening of December 24, 1913, the plaintiff started to take the train that left Milford Depot at five minutes of 6, and was proceeding in a southerly direction along the path on the east side of West Town street. She had lived in the town of Milford for about seven years. From the 1st day of April, 1913, to the time of the accident she had lived about 2 1/2 to 3 city blocks to the north of this excavation. Prior to that time she had lived a little further away from this place of her injury, but in the same section of the town. She was acquainted with and knew in a general way about this excavation, and knew that there was no rail or fence there, having been there with her children. She had passed over this place and this sidewalk at least twice before. Upon the night in question she knew, in a general way, about the situation there, and had it in mind and knew that it was a dangerous place, especially in the nighttime, but she was not conscious that it was as near the sidewalk as it was. She was walking slowly because it was dark, and was not aware that she was so near the embankment until she fell. The evening the plaintiff was injured was a clear, dark night, there being no moon, but the stars were shining, and there were no lights sufficiently near the place of the accident to light the street or walk at this place. The plaintiff allowed herself plenty of time to reach the railroad station. She was walking slowly and paying attention to the sidewalk, and was in the exercise of due care, and not negligent, when the accident happened. There was no street light to light the sidewalk at this place, and the plaintiff did not see the embankment. The excavation has been in practically the same condition as at the time of the accident for about 20 years. The selectmen of Milford had knowledge thereof for a long time prior thereto, but nevertheless did nothing to protect travelers from the excavation, and at the time of the accident the sidewalk was not protected.

Robert C. Stoddard and Samuel A. Persky, both of New Haven, for appellant.

Omar W. Platt, of Wallingford, for appellee.

RORABACK, J. (after stating the facts as above). The appellant assigned several errors of law in its reasons of appeal among which was that:

"The facts set forth in the finding do not support the conclusion reached in the second subdivision of the finding, because it appears from the subordinate facts set forth in the finding that the plaintiff went upon this sidewalk with the knowledge of its condition, and knowing that there was no railing there, and that at the time it was dark and she could not see her way, and that there was another path, of which the plaintiff had full knowledge, which was absolutely safe, and by which she could have reached her destination without loss of time."

The defendant also assigned various errors in overruling certain claims of law made by it in the finding as made, and the evidence material to these points was made part of the record. One reason of appeal relates to a ruling made upon the rejection of certain evidence.

The defense that there was contributory negligence on the part of the plaintiff rests largely on the fact that she was familiar with and knew of this excavation which was the cause of her injury, and that she ought to have avoided falling into it. The fact that Mrs. Smith knew, in a general way, about this excavation, and knew that there was no fence or railing there, is not conclusive evidence that she was negligent in attempting to pass it. A person who, in the lawful use of the highway meets with an obstacle may yet proceed if it is consistent with reasonable care so to do. This is generally a question of fact, depending upon the nature and location of the obstruction and all of the circumstances surrounding the party at the time. So, too, the fact that the plaintiff might have taken another path than the one she was traveling when injured. This, as in the former case, is relevant evidence upon the question of due care, but not conclusive. Congdon v. Norwich, 37 Conn. 414, 420; Carstesen v. Stratford et al., 67 Conn. 428, 433, 434, 35 Atl. 276. By reason of the darkness the plaintiff could not see where she was going, and without any warning, accidentally, in consequence of a want of railing at that place, stepped off the embankment and fell. She had a general knowledge about the situation at this place, and was walking cautiously because it was dark, but she was not aware that she was so near the embankment until she fell and was injured. In Mahoney v. Metropolitan Railroad, 104 Mass. 73, it was held that:

"The fact that the plaintiff saw the obstruction created by the defendants, and knew its dangerous character, is not conclusive proof that he was negligent in attempting to pass it. A person, who, in the lawful use of a highway, meets with an obstacle, may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction and all the circumstances surrounding the party. In the case at bar, if the plaintiff had reasonable cause to believe that he could pass the obstruction in safety, and used reasonable care in the attempt, he is entitled to recover."

As already stated,...