Hay v. Hill

• Decision Date: 14 November 1950
• Citation: 137 Conn. 285,76 A.2d 924
• Parties: HAY v. HILL, Highway Commissioner et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 924

76 A.2d 924

137 Conn. 285

HAY v. HILL, Highway Commissioner et al.

Supreme Court of Errors of Connecticut.

Nov. 14, 1950.

William J. Larkin and William J. Larkin, 2d, Waterbury, for appellant.

Francis B. Feeley, Waterbury, with whom were John A. Speziale, Torrington, and, on the brief, Stephen K. Elliott, Waterbury, for appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

JENNINGS, Judge.

The plaintiff brought suit against the state highway commissioner and the New York, New Haven and Hartford Railroad Company to recover damages for injuries received when she fell into a culvert on the state highway. The trial resulted in a verdict in favor of the railroad. The plaintiff did not appeal, and the causes of action against the railroad do not require consideration. The plaintiff had a verdict against the commissioner, and he appealed from the denial of his motion to set it aside and from the judgment.

The jury reasonably could have found the following facts: At approximately 1:30 a. m. on November 13, 1948, the plaintiff was a passenger in a motor vehicle traveling northerly on an improved state trunk highway known as Thomaston Avenue and located in the unsettled portion of the city of Waterbury. It was very dark and there were no street light in operation in the vicinity. The operator of the motor vehicle stopped at the plaintiff's request and she alighted for the purpose of voiding. She walked ten or twelve feet in a southerly direction along the easterly side of the highway. She then turned to her left and after taking about four steps fell into an open, unguarded ditch adjacent to a culvert. The culvert was about eight feet deep and ten feet wide and the head wall was about eight feet east of the eastern edge of the oiled shoulder. The excavation extended for some distance east of the head wall. It was within the bounds of the state highway and under the sole control of the defendant.

The concrete portion of the highway was twenty feet wide, with oiled shoulders of varying width on both sides. On the east side, at the point of accident, the shoulder was about five feet wide and sloped slightly downward from the level of the concrete. The grade then rose to the head wall of the culvert so that at that point the ground level was about one foot above the eastern edge of the shoulder. The head wall projected slightly above the ground level at that point and was ten feet long and about sixteen inches wide. There was a vertical drop from the eastern edge of the head wall to the bottom of the culvert. The surface of the ground between the shoulder and the culvert was rough and covered with shrubs and weeds. The culvert was not guarded, either at the head wall or along the sides of the ditch running east therefrom.

It is the custom of the defendant to place vertical posts at culverts less than ten feet from the edge of the shoulder. For example, there are several culverts in this vicinity, all but one of which are guarded by posts. When close to the highway, the posts are connected by cables so as to make a fence. It would have been standard and good practice to put three posts on the road side of the culvert in question.

The foregoing facts were substantially undisputed except that the defendant claimed that the distance between the edge of the shoulder and the culvert was twelve feet. Since there was evidence to support the eight-foot figure, the jury could have accepted it.

The defendant contends in support of his motion to set aside the verdict that the statute imposes no liability for defects outside the traveled and wrought portions of the highway, that the plaintiff was not a traveler on the highway entitled to the protection of the statute, and that she was guilty of contributory negligence as a matter of law.

The terms of the sections of the General Statutes which provide for damages for injuries resulting from highway defects are too familiar to require quotation. A comparison of the language of § 2201, relating to the duty of the state, with §§ 2125 and 2126, relating to the duty of towns, shows that the respective duties are substantially identical with the exception of certain provisos included in § 2201. These will be discussed later. The respective liabilities are discussed in Moleske v. MacDonald, 109 Conn. 336, 146 A. 820, Griffith v. Town of Berlin, 130 Conn. 84, 32 A.2d 56, and Hornyak v. Town of Fairfield, 135 Conn. 619, 67 A.2d 562, relied on by the defendant. All of these cases are concerned with sidewalks. There were no sidewalks at the place in question.

An early case recognized that a defect outside of the traveled path might give rise to an action against a town under the statute. The accepted definition of such a defect reads as follows: 'Any object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result, would generally constitute a defect in the highway.' Hewison v. City of New Haven, 34 Conn. 136, 142. So, as was said in Udkin v. New Haven, 80 Conn. 291, 297, 68 A. 253, 255, 4 L.R.A.,N.S., 868: 'It has been frequently contended that nothing which was without the highway could have that effect [constitute a defect under the statute]. This court has, however, held that there might be situations where the source of danger, although situated without the way, was of itself to direct a menace to travel over the way and so susceptible to protection or remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. Beardsley v. City of Hartford, 50 Conn. 529.' See also Dimock v. Town of Suffield, 30 Conn. 129, 132; Seidel v. Town of Woodbury, 81 Conn. 65, 69, 70 A. 58; Smith v. Town of Milford, 89 Conn. 24, 31, 92 A. 675; Parker v. City of Hartford, 122 Conn. 500, 502, 190 A. 866.

The defendant cites no case in support of his basic proposition. As stated above, there is no substantial difference in the duties imposed by the statutes on the state and on the towns. The cases, as far as they have gone, support this view. Perrotti v. Bennett, 94 Conn. 533, 542, 109 A. 890; Horton v. MacDonald, 105 Conn. 356, 360, 135 A. 442; Albright v. MacDonald, 121 Conn. 88, 94, 183 A. 389; Rusch v. Cox, 130 Conn 26, 33, 31 A.2d 457.

The claim of the defendant that the road was not 'raised above the adjoining ground so as to be unsafe for travel' (§ 2201) because the general slope of the ground east of the shoulder was upward is without merit. There was a drop of at least eight feet for the ten-foot length of the head wall. The plaintiff relied on both the lack of a fence and the generally defective condition. The jury viewed the premises and reasonably could conclude, especially in view of the actual practice of the defendant, that he should have corrected the defect or protected it by a railing or both. It was a question of fact. Albright v. MacDonald, supra.

A person must be on the highway for some legitimate purpose connected with travel thereon in order to...