Vezina v. City of Hartford

• Decision Date: 28 June 1927
• Citation: 106 Conn. 378,138 A. 145
• Court: Connecticut Supreme Court
• Parties: VEZINA v. CITY OF HARTFORD.

138 A. 145

106 Conn. 378

VEZINA v. CITY OF HARTFORD.

Supreme Court of Errors of Connecticut.

June 28, 1927

Appeal from Superior Court, Hartford County; Isaac Wolfe and Newell Jennings, Judges.

Action by Marie Vezina against the City of Hartford, to recover damages for personal injuries alleged to have been caused by a defect in defendant's highway, tried to the court. Judgment for defendant, and plaintiff appeals. No error.

Jacob Schwolsky and Harry Schwolsky, both of Hartford, for appellant.

Louis B. Rosenfeld and W. Arthur Countryman, Jr. both of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

WHEELER, C.J.

The city of Hartford maintains under its charter a fire department. At 5:07 p. m. on January 7, 1926, a portion of the department was called to extinguish a fire on the fifth floor of a building in the business center of this city, at the southwest corner of Main and Church streets. The fire apparatus was withdrawn at 6:20 p. m. To guard against a rekindling of the fire, the department left a watch of three men, together with a " dry line" ; that is, a hose which had not been used in extinguishing the fire. When the apparatus was withdrawn, the " dry line" was coupled to a hydrant nearest the fire and laid diagonally across the sidewalk, through the yard of the church property adjoining this building, into its north side. The hose was empty and lay flat between one and two inches above the level of the sidewalk and about its color. The church property is separated from the sidewalk by a high iron fence, painted black. The church was unlighted at the time of this accident. There was no warning sign or light placed to notify pedestrians that the hose was laid across the sidewalk. Main street is a well-lighted street. A double light standard is situated at a point about four feet north of the hydrant to which the hose was coupled. The plaintiff, while walking close to the church fence along Main street, between 7:30 and 8:30 p. m., stumbled over the hose and fell and was injured. We include in our statement of facts those contained in the finding as corrected by us.

The trial court held that (1) the plaintiff was in the exercise of due care and the defendant not negligent; (2) the hose was not a defect in the highway within the meaning of section 1414 of the General Statutes; and (3) that defendant, in laying and maintaining the hose, was engaged in the performance of a governmental duty.

A municipality, engaged in the performance of a public duty for the public benefit, and not for its own corporate benefit will be immune from liability for injuries done by it in the performance of such duty. Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11, 14. A fire department engaged in exextinguishing fires is performing a governmental duty for the general good. Under this principle we held that a municipality was not liable for injury caused by the negligence of the driver of a hose cart while driving to a fire at a very rapid and dangerous speed. Jewett v. New Haven, 38 Conn. 368, 9 Am.Rep. 382. Again we held that a municipality, when engaged in flushing out a hydrant for the sole purpose of determining whether it was in a suitable condition for use in extinguishing fires, was engaged in the performance of a public, governmental duty, and was not liable for negligence in the discharge of that duty. Judson v. Winsted, 80 Conn. 384, 68 A. 999, 15 L.R.A. (N. S.) 91. No liability attaches to a municipality for the negligent performance of a governmental duty unless made so by statute. In Pope v. New Haven, 91 Conn. 79, 80, 99 A. 51, 52 (L. R. A. 1917B, 1239) we held:

" It is well settled in this state that municipal corporations are exempt from liability for the negligent performance of a purely public governmental duty unless made liable by statute."

We reiterated this in Epstein, Administratrix, v. City of New Haven, 104 Conn. 283, 132 A. 467, which was an action to recover damages caused by the negligence of the servants of a municipality in the care and operation of the amusements in a children's playground in a public park. In Dyer v. Danbury, 85 Conn. 128, 131, 81 A. 958, 39 L.R.A. (N. S.) 405, Ann.Cas. 1913A, 784, we held that an injury to a traveler on a highway, caused by the fall of a limb overhanging the street, would not be a defect in the highway, but might be a public nuisance, imposing upon the municipality a public governmental duty for the neglect of which the municipality would not be liable unless made so by statute. At page 131 (81 A. 959) we said:

" For the nonperformance or misperformance of a merely governmental duty imposed upon a city or town, it is not liable in damages unless a right of action against it is given by statute." Id.; Hewison, Adm'x, v. New Haven, 37 Conn. 475, 9 Am.Rep. 342.

The facts found do not leave in doubt the fact that the defendant municipality, in laying and maintaining...