Udkin v. City of New Haven

68 A. 253, 80 Conn. 291, 1907 Conn. LEXIS 46

• Court: Supreme Court of Connecticut
• Decided: December 17, 1907
• Status: Published

Opinion

Prentice, J.

It is apparent from tlie record that the rule of duty which the court imposed upon the defendant in its care of the icy walk in question was one that required it to deal not only with conditions within the highway and with conditions without it by means to be employed within it, but also with conditions without it and upon private lands by means and measures to be there directly applied. The defendant claimed that it had no power to go upon the premises of private owners to change conditions there which were conducive to the formation of ice upon the walk in question, and that therefore no duty to do so was cast upon it, since where there was no power there could be no duty. The court held that the defendant had such power, and that its reasonable care of the street involved the reasonable exercise of that power. It needs no argument to disclose the harmfulness to the defendant of this ruling, if incorrect, nor to reveal the grave consequences to municipal corporations charged with the repair of highways, and to private property owners alike, which are involved in it.

Counsel for the plaintiff earnestly urge upon us the correctness of the ruling. The argument advanced in support of this contention consists of the assertion of the proposition that the defendant city possessed the power, both independently of its charter and under the grant of power therein, to abate the outside conditions recited in the finding, as public nuisances. It is clear that the leader and accumulated snow in question did not constitute nuisances per se, and that therefore the power to abate them did not inhere in the defendant as a public corporation. Its charter contained a delegation to its common council of the power to adopt orders and resolutions and enact ordinances to prevent nuisances, and to summarily abate them at the expense of the person maintaining them. This granted power to declare nuisances and provide for their abatement, although unlimited in terms, is not unlimited in law. Yates v. Milwaukee, 10 Wall. (U. S.) 497; State v. Clarke, 69 Conn. 371, 373, 37 Atl. 975. If, however, it be assumed that the leader and snow created such conditions as to make it a lawful exercise of the city’s authority to declare them to be nuisances, the argument by which it is sought to impose a liability upon the defendant for its non-action in the premises, remains incomplete, and counsel have made no attempt to complete it. It remains to be shown that the city, having the claimed power, was in duty bound to make reasonable use of it in the performance of its obligation to keep its highways in sufficient repair, and would be liable for negligence arising from its non-use of the power or the manner of its use. Plaintiff’s counsel have assumed this proposition as the unstated major premise of its syllogism. It is, however, a false premise.

In the first place, the power conferred is a legislative one, and plainly discretionary, both as to what declarations of nuisances should be made, and as to the manner of dealing with the subject-matter of the declarations. The city, in the exercise of its discretionary legislative power thus conferred, has not seen fit to legislate as to situations like those under review. That which was necessary to be done before the conditions complained of could be abated upon the private lands where they existed, and at the hands of the city’s agents in the exercise of administrative functions, has never been done. No officer or agent of the city was authorized to do what the court contemplated might have been done. The city’s only shortcoming must therefore have been legislative, and result from the fact that its common council had not seen fit, in the exercise of its legislative functions, to take certain action deemed to be-appropriate to situations like that here disclosed. But as respects the exercise of both discretionary powers generally, and legislative powers where the law has not either expressly or by clear implication imposed a duty as to their exercise, no liability attaches for either their non-exercise or the manner of their exercise. Anderson v. East, 117 Ind. 126, 127, 19 N. E. 726; Hines v. Charlotte, 72 Mich. 278, 40 N. W. 333; McDade v. Chester, 117 Pa. St. 414, 424, 12 Atl. 421; Kiley v. Kansas, 87 Mo. 103, 108.

But the aspect of the case thus far considered is only one of-the results of the application of. broader principles. It is accepted law that the grant of authority to a municipal corporation, or acceptance by it of authority conferred, for the performance of strictly governmental duties, does not' of. itself create a liability for an omission to perform such duties, or for a negligent performance of them, and that the only liability in such cases is that which is declared by statute either expressly or by clear implication. Hewison v. New Haven, 37 Conn. 475, 482; Colwell v. Waterbury, 74 id. 568, 573, 51 Atl. 530; Hill v. Boston, 122 Mass. 344; 2 Dillon on Mun. Corp., § 950. The duty which the defendant owed in the care of this -street, including its sidewalk, arose from certain general statutes which defined and fixed the duty and imposed the liability for nonperformance.. There was no other duty or liability, and that duty and., liability was precisely the same as that which rested, and rests, upon every town, city or borough in the State, with' respect to the care of every highway within them. Hewison v. New Haven, 34 Conn. 136, 139; Beardsley v. Hartford, 50 id. 529, 537; Lavigne v. New Haven, 75 id. 693, 696, 55 Atl. 569. This duty was expressed to be that of repair, and the liability that of responding in damages to one who was injured in his person or property by means of the highway’s deféctive.condition. General Statutes, §§ 2013, 2020,. The duty thus imposed was in its legal measure not an absolute one, but one which called for the exercise of reasonable cafe to maintain the street in a reasonably safe condition for public travel. This was the uniform rule of duty for highway care; but as reasonableness of care and condition may vary with each set of surrounding circumstances, diverse in character it may' be, the practical requirements of each, place' and occasion might be very unlike, but they would be unlike -not because there was any shifting or variable measure of duty arising from whatever cause, but because that measure involved a consideration of all the surrounding circumstances.

So it is that it was of no significance in fixing the defendant’s duty in the present case, what grant of special powers might or, might not have been embraced in its charter. It owed precisely the statutory duty described,, and precisely that which is imposed upon the smallest town in the State, and none other. It is quite clear, therefore, that the duty was not one which either called for or justi-. fied entrance upon private property there to deal directly with situations which might tend to produce unsafe conditions in the highway. In Hewison v. New Haven, 34 Conn. 136, 141, and Beardsley v. Hartford, 50 id. 529, 539, it was so distinctly held. In the latter case the source of danger was an unguarded, open hatchway abutting upon the sidewalk but located upon private land. Its menace to the traveler was apparent, but this court said that the city had no right to go upon the land of the private owner to construct means of public protection, and, that its efforts in respect to it must be confined to the limits of the street. In Gaylord v. New Britain, 58 Conn. 398, 20 Atl. 365, was presented a case involving the duty of municipalities in respect to icy sidewalks, and the court in emphatic language negatived any responsibility beyond that for defective conditions existing within the limits of the walk or street.

Not everything which endangers the safety of highway travel renders a highway defective and out of repair. Hewison v. New Haven, 34 Conn. 136, 140; Ayer v. Norwich, 39 id. 376, 381. It has been frequently contended that nothing which was without the highway could have that effect. This court has, however, held that there might be situations where the source of danger, although situated without the way, was ,of itself so direct a menace to travel over the way and so susceptible to protection or remedial méasúres 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. Hartford, 50 Conn. 529. But where the cause of complaint is not of itself a direct source of danger to the traveler, or, being such a source of danger, is not susceptible to protective or remedial measures which can be reasonably employed within the highway, it cannot be regarded, and as far as we are aware has never been regarded, as a defect in the highway. Such outside conditions, in so far as they are likely to contribute to produce dangerous conditions within the highway, and are known or ought to have been known to the municipality, may well be considered as one of the circumstances in determining whether or not reasonable care has been used with respect to the latter conditions ; but that is a very different matter from requiring municipal corporations, in their care of highways, to deal directly with such outside conditions as in themselves creating defects in the highway.

There is error and a new trial is ordered.

In this opinion the other judges concurred.