Town of Waterbury v. Waterbury Traction Co.

• Citation: 74 Conn. 152,50 A. 3
• Parties: TOWN OF WATERBURY v. WATERBURY TRACTION CO.
• Decision Date: 27 September 1901
• Court: Supreme Court of Connecticut

50 A. 3

74 Conn. 152

TOWN OF WATERBURY

v. WATERBURY TRACTION CO.

Supreme Court of Errors of Connecticut.

Sept. 27, 1901.

Appeal from superior court, New Haven county; John M. Thayer, Judge.

Action by the town of Waterbury against the Waterbury Traction Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The substituted complaint, the averments of which the plaintiff claimed to have proved, alleged, in substance: That on July 18, 1894, the highway in question at a described point was defective and unsafe, in that it was raised above the adjoining ground on the westerly side, and there was no fence or railing along said westerly side. That it was the duty of the town of Waterbury to keep and maintain said highway at that place safe and convenient for public travel. That on or before the 1st day of June, 1894, the said town of Waterbury erected a railing on the west side of the highway at said place, and maintained the same until it was taken down by the defendant's servants, as hereinafter described. That on or about the 10th day of July, 1894, the defendant, by its servants and agents, for the purpose of moving one of its poles a few inches further west out of the traveled track of said highway, took down the south end of said railing, and negligently suffered the same to remain down; and so negligently put the said railing up again that it immediately thereafter fell down again upon the ground, and so remained until after the accident That on July 18, 1894, Anthony W. Ashborn, of Waterbury, was traveling upon said highway in the exercise of due care, near to and by the side of the place where the railing was so down, when, in consequence of the negligence of the defendant and its servants in taking down said rail, and in suffering and permitting the same to be and remain down, and the careless manner in which the same was put up and secured in place again by the defendant's servants, he fell down the bank of the west side of said highway onto the rocks below, a distance of about sixteen feet, and was injured as described. That said Ashborn gave written due notice of his injury, and on the 14th day of September, 1894, brought his certain action before the district court of Waterbury on the first Tuesday of October, 1894, to recover for his said injuries. That on or about the 9th day of October, 1894, the plaintiff's attorney gave the defendant a written notice, and at the same time sent to the defendant a copy of the writ and complaint in the action brought by Ashborn against the town, which notice was as follows: "Oct. 9th, 1894. The Waterbury Traction Co., City.—Gentlemen: Anthony W. Ashborn has brought suit against the town of Waterbury for $10,000 damages, incurred by reason of a defective highway on July 18th, 1894. This suit was returned to the district court of Waterbury on the first Tuesday of October. Inasmuch as the defective condition of the highway complained of was caused by your failure to replace the railing taken down when you were laying your tracks along South Main street, the town will look to you in case a judgment for damages is recovered. Inclosed herewith is a copy of the complaint, and, if you should desire to be represented by counsel in this case, the town would be very glad of such assistance. Yours, truly, Town of Waterbury, by Kellogg & Kellogg, Attys." That the defendant, by its attorneys, appeared, and assisted the attorneys of the town in the defense of the said action so brought before the said district court. That on April 25, 1896, the said district court rendered a judgment against the town for $5,000 damages and costs. That from said judgment the town appealed to the superior court on the first Tuesday of May, 1896. That on the 15th day of January, 1897, judgment was rendered in the superior court against the town for $6,000 damages and costs. That from this judgment the town appealed to the supreme court, which, on the 25th day of May, 1897, granted a new trial. That on the 3d day of March, 1898, a Judgment was rendered in the superior court for $5,250 and costs, taxed at $456.71. That from this last judgment the town again appealed to the supreme court, which court, on the 15th day of June, 1898, decided that no error had been committed. That on June 22, 1898, the plaintiff was compelled to pay said Ashborn, in settlement of said judgment, $5,778.61. That the plaintiff necessarily also paid its own costs and disbursements for counsel fees in defending the said action in said several courts, amounting to more than $3,000, the items of which were stated. That the plaintiff demanded to be indemnified for the loss and expenses so incurred, but the defendant refused to pay the same. That the defendant in this action had actual knowledge of said action in favor of Ashborn against the town from its commencement to its final determination, and knew or should have known that the damages therein claimed were caused by the wrongful and negligent acts of the defendant and its agents engaged in its business of taking down that railing, and allowing the same to be down at the time Ashborn was injured, and that the damages recovered by Ashborn in said action were caused by the defendant's servants engaged in its business in allowing said railing to be down at the time said Ashborn was injured. The defendant demurred to the complaint upon the grounds, in substance, that it did not appear that the acts of negligence alleged in this complaint to have been committed by the defendant could have been in issue in the suit brought by Ashborn, nor that the present defendant was summoned to be made a party in said action, nor that it was notified to appear and defend at the appeal and trial of said action in the superior court, nor that the defendant received such notice to defend as rendered it liable for costs and counsel fees, and especially for expenses incurred after the first trial in the district court. This demurrer was overruled pro forma.

Upon the trial of the case to the jury the plaintiff claimed to have proved that it erected the railing described in the complaint in 1884. and that about June 23, 1894, it was taken down by the defendant for the purpose and in the manner described in the complaint, and not restored to the condition in which the defendant found it. The defendant claimed that it did not take down said railing, but that its men found it down at its south end when they went to move their said trolley pole, and that, after they had shifted the trolley pole, they put up the railing so that it was held by the iron pins upon the tops of the three northerly of the four supporting posts, with its south end sprung against the east face of the south supporting post. The plaintiff was permitted, against the defendant's objection, to lay in evidence the complaint, answer, and judgment filed in said action by Ashborn, together with evidence that the defect proved in the trial of that case consisted in said railing being down at its south end, as described in this complaint. There was no direct evidence that the railing in question was taken down by the defendant, and one Oviatt, an employe of the defendant, who, with several men in his charge, went to the place in question to shift said trolley pole to the west, when called as a witness for the plaintiff, testified upon his direct examination to the moving of said trolley pole, and that the rail was down when he went there.

The plaintiff was permitted to prove, against the defendant's objection, that on the morning after the accident its superintendent of streets, Mr. Wright, with the first selectman of the town, called upon the defendant's superintendent, Bradley, in charge of the operation of its cars, and notified him of the accident, and that the railing was down, and that the defendant's men had taken it down and neglected to put it up, and requested that it be put up immediately; and that said Bradley went at once to the place of the accident, and met Wright there, and promised him that he would have the rail put up the same day; and to prove by the testimony of said Oviatt that on said day, in pursuance of said notice and promise, Mr. Shepardson, the general manager of the defendant, sent said Oviatt and a gang of men to put said railing in its place, and that they did so by cutting the railing in two in the middle, and placing the two parts upon the supporting posts, and fastening the middle ends to the trolley pole. The court admitted this and other evidence to the same effect as tending to prove that the defendant took down the railing, and afterwards charged the jury that said evidence was competent for them to consider upon the question of whether the defendant in fact took down the railing. It appeared from evidence offered by the plaintiff that Mr. Wright had knowledge that said railing was down some three weeks before the accident, and that he told Oviatt, who was then at work moving the trolley pole, to put the railing up again; that Wright went away for a week, and on his return was engaged upon other highways, and did not learn of the condition of the railing again until the morning after the accident. The defendant objected to proof that Oviatt promised that he would put up the railing, and that Wright relied upon said promise, and supposed that the railing had been properly put up again, and the court sustained the objection. The defendant afterwards claimed that during said three weeks the plaintiff willfully and intentionally neglected to put up said railing, and requested the court to charge the jury that, if the plaintiff had knowledge for more than a week prior to the accident that the railing was down, and willfully, intentionally, or grossly neglected to put it up, and the accident occurred in consequence of its being down, it could not recover, even though the defendant's workmen had taken down the railing, and neglected to restore it in as good a condition as before...