Tuckel v. Argraves

• Decision Date: 02 May 1961
• Citation: 170 A.2d 895,148 Conn. 355
• Court: Connecticut Supreme Court
• Parties: Maurice TUCKEL v. Newman E. ARGRAVES, Highway Commissioner. Supreme Court of Errors of Connecticut

Page 895

170 A.2d 895

148 Conn. 355

Maurice TUCKEL v. Newman E. ARGRAVES, Highway Commissioner.

Supreme Court of Errors of Connecticut.

May 2, 1961.

William J. Butler, Hartford, with whom, on the brief, were Aaron L. Gersten and Harold Gersten, Hartford, for the appellant (plaintiff).

George D. Brodigan, Hartford, with whom, on the brief, were Alfred F. Wechsler and David M. Shea, Hartford, for the appellee (defendant).

Before BALDWIN, C. J., KING, MURPHY and MELLITZ, JJ., and BORDON, Superior Court Judge.

KING, Associate Justice.

The substitute complaint in effect alleged: The plaintiff was walking on a sidewalk in East Hartford, within the limits of a trunk-line highway, when a directional sign fell on him. The sign, indicating 'Boston' and 'Springfield,' was maintained within the highway limits by the defendant as highway commissioner. It fell because of its defective condition, which was the result of neglect by the defendant in its maintenance. When the plaintiff was struck by the sign, he received injuries for which he seeks to recover damages.

A demurrer filed by the defendant was sustained on each of three grounds. The allegations of the complaint make it clear that the plaintiff was injured while he was walking on a sidewalk. But it is not alleged that the sidewalk was defective, and the plaintiff himself admits in his brief that it was not. The plaintiff's claim is that there was a defective condition within the limits of a trunk-line highway, although not within the limits of the sidewalk, which injured him while he was walking on the sidewalk. Of course it is true that if a private citizen has by his negligence injured a pedestrian on a sidewalk there may be a cause of action in common-law negligence against the private citizen. See cases such as Sedita v. Steinberg, 105 Conn. 1, 9, 134 A. 243, 49 A.L.R. 154; Oneker v. Liggett Drug Co., 124 Conn. 83, 86, 197 A. 887, and Fabrizi v. Golub, 134 Conn. 89, 94, 55 A.2d 625, involving negligence of an abutter, and cases such as Gates v. Crane Co., 107 Conn. 201, 203, 139 A. 782, involving negligence of a private citizen who is operating a motor vehicle in the vehicular portion of the highway. But such a common-law cause of action does not exist against the highway commissioner, since a suit against him is a suit against the sovereign. This was fully appreciated by the plaintiff, who instituted this action under the provisions of what is now § 13-87 of the General Statutes.

Since this action was brought under the provisions of a particular statute, and no right of action exists at common law, the burden was on the plaintiff to allege the facts necessary to bring himself within the terms of the statute, the material portions of which are quoted in the footnote. ¹ Bartram v. Town of Sharon, 71 Conn. 686, 692, 43 A. 143, 46 L.R.A. 144; Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890; McManus v. Jarvis, 128 Conn. 707, 710, 22 A.2d 857.

It is settled law that the statutory right of action is given only to a traveler on the road or sidewalk alleged to be defective. Hay v. Hill, 137 Conn. 285, 290, 76 A.2d 924, and cases cited therein. The allegation that the plaintiff was walking along the sidewalk was a sufficient allegation that he was a traveler thereon. But the statutory liability of the highway commissioner for a defective highway and his statutory liability for a defective sidewalk differ entirely. This is true even though, as alleged here, the sidewalk is within the limits of a trunk-line highway, the claimed defective condition existed within those limits, and the condition arose because of the neglect of the highway commissioner. The statutory liability of the commissioner exists only in the case of a traveler on a highway or sidewalk 'which it is the duty of the highway commissioner to keep in repair.' Ordinarily, this duty to keep in repair is imposed on the commissioner with respect to the vehicular portion of a trunk-line highway but not with respect to a sidewalk, even though it lies within the limits of a trunk-line highway. Moleske v. MacDonald, 109 Conn. 336, 339, 146 A. 820; Hornyak v. Town of Fairfield, 135 Conn. 619, 621, 67 A.2d 562; Schoenfeld v. City of Meriden, 136 Conn. 346, 350, 70 A.2d 922. '[W]here the state takes over an existing street or highway as a state road, it assumes the responsibility for its use and maintenance for all purposes incident to vehicular traffic, and it leaves undisturbed the existing responsibility of the municipalities for sidewalks and the like.' Schoenfeld v. City of Meriden, supra, 136 Conn. 351, 70 A.2d 924. Under the provisions of § 13-125(c), there are certain exceptions to the foregoing general rule, but the complaint contains no allegations which would bring the sidewalk here within any of those exceptions or in any other manner indicate that it was a sidewalk which the defendant was under a duty to keep in repair. Schoenfeld v. City of Meriden, supra. Thus, even had the plaintiff alleged that the sidewalk was defective, and, as pointed out, he did not, the...