Cummings v. City of Hartford , 70 Conn. 115 ( 1897 )

Baldwin, J.

Every municipal corporation which is charged with the duty of maintaining the highways within its limits in sufficient condition of repair1, is bound to make use of such agencies as the law may provide, or reasonable care demand, for ascertaining from túne to time what their condition is, and remedying any defects that may be found to exist. By the charter of the city of Hartford, the board of street commissioners, whose duty it is to appoint a superintendent of streets, is made such an agency (VI. Special Laws, p. 743) ; but it is not necessarily the only one to be employed. The common council could not withdraw the general supervision of the streets from that board, but they could aid or supplement the exercise of its powers, by appropriate ordinances. Hartford v. Hartford Electric Light Co., 65 Conn. 324, 329. The charter also provides for a city police department, and leaves it to the proper municipal authorities to prescribe in detail the duties of the policemen, (V. Special Laws, p. 322). Their primary duty is to guard the city by day and night and preserve the public peace. In this they are the agents of the law, and in a certain sense officers of the State. Farrell v. Bridgeport, 45 Conn. 191, 195; State v. Pinkerman, 63 id. 176, 182. But as the performance of this duty necessarily involves patrolling the streets, it is obvious that the patrolmen are in a position which gives them special opportunities for inspecting the condition of these streets, and observing any defects in them as soon as they arise. As they are appointed and paid by the city, and there is no incompatibility between the function of guarding the public against acts of criminality, and that of guarding it from harm by acts of trespass or negligence, it was proper for the defendant to lay down the duties of policemen, as was done in the ordinance (Chap. XIII.) and rule, set forth in the finding. By thus commissioning an existing agency to inspect the street and in case of need to remedy defects, the city was relieved of a needless expense which would have been incident to the organization of a patrol force of equal efficiency, to act under the orders of the board of street commissioners.

While, therefore, that board is the immediate representative of the city in respect to whatever pertains to the repair of streets, and notice to it of any want of repair is, as matter of law, notice to the city, it is also true that every patrolman on the police force has been placed in such a position that notice to him of any such want of repair may, under certain circumstances, be notice to the city. Such circumstances the Superior Court held to exist, in the case at bar, and there is nothing in the facts found to impugn the validity of the conclusion.

The ruling that the policeman on day duty who first discovered the excavation should have “ prevented the further unlawful obstruction of the highway,” was incorrect. It assumes that he knew or ought to have suspected that the work was being done without a permit. On the contrary, he had a right to presume that before undertaking to relay a sidewalk upon a crowded street, the contractor had obtained the necessary authority from the board of street commissioners. He was, therefore, in no fault for not inquiring as to this point, or for not immediately reporting what he had seen to the chief of police.

The policeman on night duty, however, was placed in a different position. His attention was called about sundown to the dangerous condition in which the sidewalk had been left, and the obvious insufficiency of the barriers placed for the protection of pedestrians. He procured a couple of lanterns and set one on the plank at each end of the ditch, but left it otherwise wholly unguarded on either side for its entire length of fifty feet; proceeding upon his beat, without taking any further precautions, or making any report to his superiors. In this he failed to comply with the rules of the department, which provided one of the principal means relied on by the city for the discharge of its duty of keeping the streets in repair. The Superior Court was warranted in finding that under all the attending circumstances the city had sufficient notice of the defect to enable it to provide proper safeguards to protect those passing upon the street, and that it was negligent in not malting such provision. It is true that in arriving at these results some weight was attached to what was held to he the default of the first policeman; but the conclusion as to actionable negligence was amply justified by the conduct of the second, and the judgment is fully supported by the finding that the measures which he took for the safety of the public rvere inadequate and insufficient.

In the memorandum of decision, filed at the date of the judgment, and several weeks before the finding, the following language is used: “ The rule that notice of a defect in the highway to any municipal officer having a duty to perform in this direction is notice to the municipality, seems to cover this ease. Aside, however, from the legal question of notice, the city cannot plead the same in the negligent omission of its own duty.”

The defendant claims that from this it appears that the court was governed in rendering the judgment by the assumption that want of notice to the city of the defect in the street was of no importance. This does not appear in the record, of winch the memorandum of decision forms no part, unless made such by the finding.

Such an assumption, however, was apparently made, and was probably founded on a misconception of the ruling of tins court in Boucher v. New Haven, 40 Conn. 456. In that ease, a city was sued by a pedestrian who fell into a hole carelessly left unguarded in relaying a sidewalk in front of his lot, and notice of the existence of the defect to the municipal authorities was held unnecessary. There, however, the city had ordered the new sidewalk laid, and was therefore put upon inquiry as to the commencement of the work. Here, on the other hand, the landowner proceeded upon his own motion, and there was nothing to lead the city to suppose that any such improvement was in contemplation. It would therefore have been fatal to the plaintiff’s case had she failed to prove either notice in fact, or such an omission by the city to exercise that reasonable supervision over its streets which was incident to its duty to maintain them in repair, as would be of itself negligence naturally leading to her injury.

But the memorandum of decision states, in effect, that there was notice in fact by reason of notice to a proper municipal officer; and in this respect is in accord with the finding.

It is on the sufficiency of the finding to support the judgment that the case turns. If a memorandum of decision announces conclusions of law controlling the decision, which a finding subsequently made does not present, resort may be had to it under certain limitations in aid of an appeal. Styles v. Tyler, 64 Conn. 432, 439, 463. But there is no occasion for this where no such variance appears. None is shown in the present case. The memorandum of decision, as to the point now in question, simply amounts to a statement by the trial judge that if a condition of tilings existed which in his opinion did not exist, a certain conclusion of law would follow. This statement was incorrect, but it related to a question not raised by the facts actually found. These cover the case and are decisive of the issue.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.