Tiesler v. Town of Norwich ( 1900 )

The question asked Mr. Spalding was properly excluded.

The pleadings, and the state of testimony and claims as shown by the finding, did not justify the defendant in claiming the charge as to notice which it framed; and it certainly has no occasion to complain of the charge as given.

The court was not required to charge as to the duty of a town in respect to the removal of carriage-blocks, in the words of the defendant's request; but we think the substance of the request on this point should have been clearly stated to the jury.

The duty of a town to remove possible obstructions from a highway is modified by rights pertaining to adjoining proprietors and to the public in the use of the way. Every adjoining proprietor has a right of access to the traveled part of the highway. Hubbard v. Deming, 21 Conn. 356,360. If separated from the driveway by a sidewalk, he has a right of access with his carriage across the walk, and if convenient to enter his carriage at the driveway he may use a stepping-stone or carriage-block for that purpose; provided this can be done without unreasonably obstructing or endangering public travel. So a carriage-block may properly be set up before a public place for the use of the general public. Dubois v. Kingston, 102 N.Y. 219. A slight possible obstruction must be endured for the sake of the general convenience in using the way. Towns are not made insurers of safe travel; and their duty in providing a sufficiently safe highway is necessarily affected by the special rights of adjoining proprietors, as well as by beneficial results to the traveling public as a whole, and by the necessities of business.Beardsley v. Hartford, 50 Conn. 529, 542.

In the present case it was not the duty of the town to remove the carriage-block, unless its size, location, surroundings, etc., were such that, in view of the adjoining proprietor's rights, it unreasonably obstructed or endangered the public in the use of the walk; whereas if a stone of the same size were on the walk, without any reason or excuse, it might be the duty of the town to cause its removal.

The charge does not make this distinction clear. While it may be unobjectionable as far as it goes, it does not go far enough. Indeed, upon the admitted facts and testimony of the plaintiff, as they appear in the record, the trial judge might have been justified, while distinctly submitting all questions of fact to the jury, in expressing his own opinion that the weight of testimony showed that this carriage-block did not unreasonably obstruct or endanger public travel.

There is error in the judgment of the Superior Court. The judgment is reversed and the cause remanded for further proceedings according to law.

In this opinion the other judges concurred.