Aaronson v. New Haven , 94 Conn. 690 ( 1920 )

The complaint alleges that in the course of the transaction described therein the city committed two breaches of legal duty toward the plaintiff: first, in placing a dangerous obstruction at the intersection of these highways without securely anchoring it; and second, by leaving it unguarded in the traveled roadway after notice that it had become displaced and after reasonable opportunity to remove it.

As to the first specification of negligence, the defendant city claims that the silent policeman in question was placed at the intersection of these highways by the direction of its proper officials for the regulation and direction of traffic, and in the exercise of a governmental duty; and that it is not liable for any damage directly and proximately due to placing a silent policeman of its own selection at a location chosen by it for that purpose. The second specification of negligence was met by the city with a denial that it failed to exercise reasonable diligence in removing the device after notice that it had been displaced and rolled into the traveled highway. Upon this latter issue there was evidence from which the jury might have found that the signal was knocked down and rolled into the traveled roadway about 6:30 p. m. on the day of the accident, that notice of the fact was given to the officer in charge of the nearest police-station about 7 p. m., that it would require not to exceed twelve minutes to walk from the police-station to the place of the accident, and that the device lay in the roadway until about 7:30 p. m., when the accident occurred.

Concededly, this device, as it lay displaced in the roadway, was an obstruction and a defect in the highway, and the jury might properly have found that the defendant had not acted with reasonable diligence in removing it after notice. That being so, the motion for a new trial, on the ground that the verdict was against the evidence, was properly denied. "The verdict was a general one, hence the presumption that the jury found all the issues for the plaintiff." Tillinghast v. Leppert, 93 Conn. 247, 249, 105 A. 615.

In this connection, we think the evidence of the witness Church, to the effect that other accidents of which the city had notice had been caused by this silent policeman being displaced, was admissible as tending to show knowledge of conditions affecting the degree of diligence which might reasonably be required of the defendant in removing it from the traveled roadway after notice.

The other assignments of error relate to portions of the charge defining the legal duty of the city to exercise care in placing silent policemen at the intersection of streets. The court said in part: "Now, the care required of the city in placing the signal device at the intersection of the streets in question, is that degree of care that the ordinarily prudent person would have used in placing such an object at the intersection of these two highways or streets." And again: "So if you find that the plaintiff has shown by the proper weight of evidence, that is, by the fair preponderance of the evidence, that the defendant was negligent as claimed by him in not fastening or anchoring the signal device so that it would not be liable to topple or be knocked over and moved into a position on the highway, and that this should have been reasonably anticipated by the city, and that this did as a matter of fact occur, and that the highway as a matter of fact was made or rendered not reasonably safe for ordinary travel thereby, and that the plaintiff was injured thereby without any fault or neglect on his part, your verdict should be for the plaintiff."

We think the court erred in charging that the mere placing of a silent policeman at the intersection of the streets with knowledge that it was liable to be displaced so as to become a dangerous obstruction to traffic, and without fastening or anchoring it so as to prevent or minimize such liability, was a breach of the legal duty which the defendant owed to travelers on its streets. "In the absence of legislation, persons using a public highway do so at their own risk. . . . This is equally true when the execution of the function is committed to the inhabitants of the municipality; the governmental duty thus imposed is a burden which the inhabitants are compelled to carry, and the failure to obey the law, or neglect in its execution, may be punished in any manner the State may prescribe. But the mere imposition of the burden imposes no duty and correlative right, as between the municipality and the persons using the highway." Lavigne v. New Haven,75 Conn. 693, 695, 55 A. 569. "An injury caused by a defective highway is not an actionable tort. The party injured has no remedy against the town or against any one, for any wrong done. His indemnity provided by the State may be collected of the town, but only as a penalty and when the occasion upon which the penalty arises exists as defined by statute."Upton v. Windham, 75 Conn. 288, 292, 53 A. 660. The only remedy given by the statute is that expressed in § 1414: "Any person injured in person or property by a defective road or bridge may recover damages from the party bound to keep it in repair." There must be a defective highway. When in the course of events leading up to the injury to the plaintiff's automobile did this highway become defective? Not by the mere installation of a silent policeman at the intersection of two highways for the purpose of directing traffic and of requiring travelers to obey § 26 of Chapter 233 of the Public Acts of 1919. There is no allegation that so long as it remained in place it failed to serve its intended purpose as an aid to traffic. The specification of negligence on this branch of the case is that it was not securely anchored in place, and although described in one paragraph of the complaint as a dangerous obstruction upon the highway, the context requires that phrase to be construed as an allegation that it was potentially dangerous because liable to be displaced.

But, irrespective of the allegations of this complaint, it cannot be said that a sufficiently conspicuous guidepost for traffic, placed at the intersection of two streets, makes the highway defective. We take judicial notice of the common use of such devices at such locations, and that they do serve a useful purpose in directing traffic and promoting obedience to the law.

It may be true, although we express no opinion on that point, that the defendant city ought in the exercise of reasonable care to have taken some measures to prevent this guide-post from being toppled over and displaced. But if that be so, its failure to take such measures was not an actionable breach of the legal duty which it owed to travelers on the highway, because the presence of a sufficiently conspicuous silent policeman in its proper place in a highway is not a defect. The fact that it is liable to be displaced and to become an obstruction to travel is relevant only as it imposes on the defendant city a commensurate degree of diligence in inspecting the device or in removing it after it is displaced.

The rule laid down in Boucher v. New Haven, 40 Conn. 456,Carstesen v. Stratford, 67 Conn. 428, 35 A. 276,Cummings v. Hartford, 70 Conn. 415, 38 A. 916, andFitch v. Hartford, 92 Conn. 365, 102 A. 768, to the effect that when a city authorizes third parties to do work within the limits of a highway which will necessarily cause a defect therein, it must use reasonable care to protect travelers against the negligence of its licensees by a reasonable supervision and control of the work, applies to the case of a silent policeman which is known to be liable to become a dangerous obstruction in the highway. The city is required to exercise reasonable supervision and control of silent policemen on its highways, but no breach of legal duty giving rise to a cause of action can occur unless and until the highway becomes defective. And then the city is not liable unless it has either failed to use reasonable care in discovering the existence of the defect, or has failed after actual notice or constructive notice to use reasonable care in repairing it. Fitch v. Hartford, 92 Conn. 365,102 A. 768. "`Notice of another defect, or of the existence of the cause likely to produce the defect, is not sufficient.'" Carl v. New Haven, 93 Conn. 622, 628,107 A. 502. The jury should have been charged that the city was not liable unless it failed to use reasonable care in discovering the obstruction after it existed, or failed to use reasonable care in removing it after notice.

Another question remains to be considered. As already stated, the verdict was a general one and it imports that the jury has found all the issues for the plaintiff. One good and sufficient specification of negligence, to wit, that the defendant neglected to remove the obstruction within a reasonable time after notice, was alleged and supported by credible testimony, and the damages to be awarded are no more or no less whether one or both issues of negligence were found for the plaintiff. That being so, the verdict must stand. Wolcott v. Coleman, 2 Conn. 324, 337; Sharp v. Curtiss,15 Conn. 526, 533; Hoag v. Hatch, 23 Conn. 585, 589;State v. Stebbins, 29 Conn. 463, 471; Bulkley v. Andrews,39 Conn. 523, 534; Foster v. Smith, 52 Conn. 449;State v. Basserman, 54 Conn. 88, 6 A. 185; Goodale v.Rohan, 76 Conn. 680, 58 A. 4. As was said in Foster v. Smith, supra, page 451: "If the evidence justified the verdict on either defense the judgment must stand. That it was sufficient to sustain the defense of payment we have already seen. We have no occasion therefore to inquire whether it was sufficient to sustain the finding that there was no new promise to pay the debt. For the same reason it is hardly necessary to inquire whether the charge on that question was correct."

In such cases the defendant may protect itself from any possible injustice, when the complaint contains two or more counts, by asking for a separate verdict upon each count, or when two or more issues are presented in one count, by asking the court to propound special interrogatories to the jury.

There is no error.

In this opinion the other judges concurred.