Burr v. Town of Plymouth

48 Conn. 460

• Court: Supreme Court of Connecticut
• Decided: January 11, 1881
• Status: Published

Opinion

Granger, J.

The first question presented upon the record is, whether the evidence offered by the plaintiff, and objected to by the defendants, was admissible.

The action was founded upon the statute relating to highways, and was for an injury received by the plaintiff upon a highway in the defendant town, the only defect in which was caused by snow and ice, no structural defect being claimed by the plaintiff. The accident happened on the 13th day of March, 1879, not upon the ordinary traveled path of the highway, nor even upon the road bed, but, as the motion states, upon “ a well defined way in and over the ditch, by the side of the wrought way, over wet and springy ground, and over logs, stones, bushes, and other obstructions in and about the ditch.” The plaintiff took this side track or way because, as he claimed, the wrought way was, and for some three months had been, for a distance of six hundred and sixty feet, blocked up by snow, and thereby rendered impassable by teams; and at about half the distance over this space, at a place where it was always wet and springy, his horses and some of the wheels of his wagon broke through the snow and ice which had formed a crust or bridge over this spot, and he received the injury complained of. There seems to have been no controversy between the parties as to the time, place and manner of the accident, nor as to its being the duty of the defendant town to keep the highway in repair.

The plaintiff, after having proved, as he claimed, all the essential allegations in his declaration, also offered evidence to prove, for what purpose does not' clearly appear in the motion, “ that the highway for said distance of six hundred and sixty feet, until a few days previous to the time of the accident, had been blocked up and impassable on account of snow; and that in the ditch, southerly of the place of the accident, and after it had occurred and after the travel had returned to the regular wrought way, it appeared that there were some large stones and other obstructions over which the public travel had been forced to pass. He also offered to prove that accidents had happened to other parties in passing over these obstructions.”

It is impossible to see the relevancy of this testimony to the question in issue between the parties, which was whether the highway at the time and place of the accident was out of repair, in such a sense as to render the town liable under the statute upon which this action is brought.

Assuming that the way in question for some time before the accident had been blockaded with snow, (and all who have lived in, or had occasion to travel through, the high towns in Litchfield County in the winter season will be ready to concur in this assumption,) it is yet to be borne in mind that the snows do not fall by the negligence of the town, and that the blockading of the roads is not the fault of the selectmen. It is claimed however that suffering the road to be blockaded for such a length of time showed negligence in the town, and that the evidence was admissible for that purpose. Now the simple fact that some part of a road is suffered to remain blockaded by snow for even three months, would not of itself show that the town was guilty of negligence to such an extent as to render it liable for an accident for that cause alone. It should be shown that it was within the means and power of the town to remove the blockade, and that the public necessities were such as to demand such removal. It is within the observation and knowledge of every one living in this latitude, and among our hill towns, that, owing to the rigorous climate, severe snows, and often sparse population and limited resources of the towns, there must be in many of them a considerable part of some of their roads that remains blockaded during a great part of the winter, and in fact until the snows disappear by the action of the elements. It is a physical impossibility to keep the roads in winter in many towns free from a snow blockade, and whether a town is guilty of negligence in suffering such blockade to remain, depends upon a variety of circumstances, and not upon that fact by itself.

Again there was no occasion for the introduction of any such evidence. The main fact in issue was susceptible of positive and direct proof, and the plaintiff was bound to show that the highway in question was out of repair at the time of the accident. Proof that it was out of repair by reason of snow for any time previous thereto went but little way to prove that it was so out of repair at the time of the injury. Snow is not a perpetual obstruction in this climate; it disappears by natural laws, and many times suddenly, and a blockade of to-day may be removed to-morrow by the action of the elements.

Undoubtedly towns are under some duty to the public in relation to keeping highways in traveling condition in the winter. But this court has said in the case of Congdon v. City of Norwich, 37 Conn., 414, that “it is conceded that in this rigorous climate the duties of cities and towns in respect to snow and ice are and must be very limited.” And the question whether those who are bound to keep the road in repair are justly chargeable with negligence, will depend upon “ all the circumstances,” not upon the one fact that the road has been blockaded with snow for a longer or shorter time. The case depends upon the further questions, whether during that time there have been means and opportunity for the town to remove the obstruction by reasonable and proper effort, and at a cost within its ability to pay, and whether the road was a public thoroughfare of any considerable importance, and the reasonable demands of the public travel required the removal of the blockade of snow. So that the fact of itself—that the road had been blockaded up to within a short time of the accident did not prove, or necessarily and legitimately tend to prove, that the accident happened in consequence of the negligence of the town.

But this evidence becomes still more objectionable when taken with the other evidence offered in connection with it, that in the ditch southerly of the place of the accident and after it had occurred, and the travel had returned to the regular wrought way, it appeared that there were some large stones and other obstructions over which the public travel had been forced to pass, and also that accidents had occurred to other parties in passing over these obstructions. It is to be noticed that these large stones and other obstructions, whatever they might have been, were not at the place of the accident, but a few rods southerly from it, and that they did not appear till after the accident, and after the public travel had returned to the regular roadway. The accident to the plaintiff did not happen in consequence of passing over any of these obstructions; he was in no way imperiled by them; they were not at the place of the accident; wherever they were until after the accident, the plaintiff was in no way affected by them; his liability to injury was in no way increased or diminished by the fact that these obstructions existed in the ditch south of the place where he was injured, nor was he in any way affected by the fact that .other parties had met with accidents in passing over these obstructions. Nothing appears showing that the town had any knowledge of these obstructions, or of any accidents caused by them, and it was not claimed that the main road at a point a few rods southerly of the place of the accident was not in a suitable condition for use at the time of the accident. The evidence upon both points was irrelevant and inadmissible. All the cases cited by the defendants’ counsel on this point go to show that the evidence should be confined to the place of the accident, or to a place so near to it as to be fairly considered the same.

The second question is, whether the requests of the defendants as to the charge to the jury ought to have been complied with. It is apparent, upon examining the charge, that it does not cover all the points and claims made in the requests, and if the requests taken as a whole, or any of them taken separately, are proper and adapted to the facts in the case as disclosed by the motion, then they should have been complied with. An examination of the requests shows pretty clearly that most, if not all of them, were taken from the language of judges of this court in delivering opinions in well considered cases, and an examination of the facts shows equally clearly that the requests were well adapted to the matter in controversy, and the defendants were entitled to have the instructions asked for in their sixth, seventh, eighth and ninth requests given to the jury. The cases of Congdon v. City of Norwich and Landolt v. City of Norwich, 87 Conn., 414 and 615, fully sustain this view.

The instruction given to the jury in relation to the side path was also incorrect. The jury were told that “if it was deemed to be more judicious, safer and better to go on the side path the town would be liable.” This might be in a given case, as we think it was in this case, making the town liable for an error in judgment on the part of the traveler. It appears that the town claimed from the facts proved that the usual way was in a safe and passable condition at the time of the accident; that on the 11th of March the main road had been opened and continued open at the time of the accident which occurred on the 13th, and that on the moniing of the accident Scott, the road contractor, and others, passed over the main road with teams, and that the road was well broken out and in a suitable and safé condition for travel, and that if the plaintiff had not diverged from it he could have passed in safety, and that there was no necessity for such divergence. Now if these claims of the defendants were supported by the facts as proved, clearly the town would not have been liable. Towns are not insurers of the absolute safety of travelers; they are only bound to provide reasonable and proper roads for the public travel, and are not obliged to keep the whole width of the highway free from obstructions and in good condition for being .driven upon, and the jury ought to have been so instructed, and that if the usual traveled way was reasonably opened and in a safe condition, and the accident happened because the the plaintiff chose, or deemed it more judicious, to take the side path, which proved to be unsafe, the town was not liable.

Upon the question of damage there was a misdirection. The facts disclose no case demanding smart money. The tenth request of the defendants was reasonable and proper and should have been complied with, and if anything more than compensatory damages was claimed the jury should have been instructed that the damages should not be unlimited but confined within the recognized and well settled rules established in this state by numerous decisions of this court, commencing with Linsley v. Bushnell, 15 Conn., 225, and ending with Wilson v. Town of Granby, 47 Conn., 59. This is not an ordinary action of tort, but an action founded on an express statute, and we are not aware of any case in our own courts founded upon this statute where smart money has been awarded against a town. The cases of Seger v. Town of Barkhamsted, 22 Conn., 290, and Masters v. Town of Warren, 27 id.,293,went to the verge of the law on the subject of damages in cases of this sort. In neither of these cases was smart money as such claimed or awarded, but a definite rule of damages adopted. Stqrrs, C. J., in the opinion in the former case says that “it is not necessary to enquire whether or how far, in an action like the present, vindictive or punitory damages are allowable.” In the case of Welch v. Durand, 36 Conn., 182, Butler, J., in giving the opinion says:—“ In what cases then may smart money be awarded in addition to the damages ? The proper answer to this question deducible from that (referring to the case of St. Peter's Church v. Beach, 26 Conn., 355,) and other cases in our reports seems to be, in actions of tort founded on the malicious or wanton misconduct or culpable neglect of the defendant.” The culpable neglect must be tantamount to malicious or wanton misconduct, and the action must rest upon one or the other of these elements, and no such element is embraced in the statute upon which this action is founded. The object of the statute was not to punish towns for misconduct, but to furnish a remedy to a party injured through a defect in a highway which it is ipade the duty of the town to keep in repair. And the whole object of the statute was to furnish a means whereby the party injured might obtain compensation for any injury he might receive, without fault on his part, by reason of any defect in the highway. The statute, prior to the revision of 1875, was that the party should recover “ just damages.” The word “ just ” is omitted in the revision, but the same idea is retained, and the same construction is to be given to the statute now as before. Damages must mean just damages, and in arriving at just damages the jury are to consider only what enters into the computation of them by well settled rules. But even if punitory or vindictive damages are to be given there should be some limit to them, and no case in our courts has gone further than allowing the plaintiff, in addition to compensation for his personal injury and suffering or loss of property, the expenses of his suit, not including the taxable costs. In this case the jury were told they might go “fully” into a consideration of the damage beyond what was actually suffered, or in other words might give smart money 'at their discretion. This we think cannot be vindicated upon principle, nor by any decision in this state. Wilson v. Town of Granby, 47 Conn., 59, and cases therein cited.

A new trial is advised.

In this opinion the other judges concurred.