Upton v. Town of Windham

• Decision Date: 05 December 1902
• Citation: 75 Conn. 288,53 A. 660
• Court: Connecticut Supreme Court
• Parties: UPTON v. TOWN OF WINDHAM.

53 A. 660

75 Conn. 288

UPTON

v. TOWN OF WINDHAM.

Supreme Court of Errors of Connecticut.

Dec. 5, 1902.

Appeal from superior court, Hartford county; Edwin B. Gager, Judge.

Action for injuries arising from a defective highway by Charles H. Upton, administrator of the estate of Mary B. Upton, deceased, against the town of Windham. From a judgment assessing substantial damages after defendant's default at the trial, defendant appeals. Affirmed.

Charles E. Perkins and George W. Meloney, for appellant.

Arthur F. Eggleston and Thomas J. Kelley, for appellee.

HAMERSLEY, J. The defendant, having suffered a default, notified the plaintiff that upon the hearing in damages he would offer evidence to disprove the material allegations of the complaint, viz., that the highway in question was defective; that the town had neglected its duty to repair the defect, and that the injury to the plaintiff's intestate was caused by the defect; and also to prove that the injury was due to the contributory negligence of the plaintiff's intestate. The burden was on the defendant to disprove the allegations and to prove the contributory negligence. The trial court has found that the defendant has failed to sustain this burden, and has properly assessed substantial damages. There is no error unless the court, in reaching its conclusion as to the facts the defendant undertook to establish, has been influenced by an erroneous view of the law. The appeal assigns errors of this kind.

It is claimed that the court, in finding that the injury complained of was caused by a defect in the highway, misconstrued the meaning of the statute authorizing an action against the town, in that the injury received in the manner as found by the court did not happen through or by means of the defect in the highway within the meaning of that statute. It appears that the portion of the highway where Mrs. Upton.(the plaintiff's intestate), with her husband, was driving when the injury was received, was so raised above the adjoining ground as to be unsafe for travel, and that the town had failed to maintain any railing or fence on the side of this portion of the highway. Such relation of the highway to the adjoining land, without a sufficient railing or fence on its side, is by statute a defect in the highway, and the person injured by means of such defect, that is, by want of such railing or fence, may recover just damages in an action upon the statute against the town. Gen. St. (Revision 1888) § 2672. The horse was a gentle horse, and was being driven with due care. While meeting and passing an automobile it became frightened, shied, veering sharply to the right, and, being within a few feet of the right side of the road, plunged down a declivity of some three or four feet to the adjoining land, ran a distance of some 40 feet, and then, taking another turn, overturned the carriage, whereby Mrs. Upton was thrown to the ground. When the horse plunged down the declivity, Mrs. Upton was thrown against the dashboard of the carriage and was badly injured upon her head, receiving also, by being thrown against the dashboard and thereafter' upon the ground, a serious concussion of the brain. She suffered great pain, and died within two weeks after the accident from concussion of the brain caused by being thrown against the dashboard, as aforesaid, and out of the carriage upon the ground. The automobile was being driven with ordinary care, and at a reasonable speed.

The defendant claims that the court erred in finding the injury to Mrs. Upton to have been caused by want of the fence or railing required by statute, because the fright of the horse was a proximate, contributing cause, and relies upon Bartram v. Town of Sharon, 71 Conn. 686, 43 Atl. 143, 46 L. R. A. 144, 71 Am. St. Rep. 225, in support of this claim. The precise point decided in that case is: "A traveler upon a highway cannot be injured through a defect in a highway, when the culpable negligence of a fellow traveler is a proximate cause of his injury" (page 697, 71 Conn., and page 147, 43 Atl., 46 L. R. A. 144, 71 Am. St. Rep. 225). The law thus stated does not apply to the present case, but the grounds on which the decision rests must govern the claim now made. These grounds are stated at length in the opinion, and it is sufficient to refer to them without repetition. The ratio decidendi may be stated thus: The state undertakes to provide highways for the common use, and to maintain them in a reasonably safe condition for that purpose; it sees tit to indemnify any one of the traveling public who, while using them in a proper way, may receive injuries caused by a failure to maintain the way in a reasonably safe condition; it imposes upon the town corporation the governmental duty of maintaining the highways within its limits, and provides means for the enforcement of that public duty; among these means it provides that whenever a traveler is injured through or by means of...