Cavanaugh v. Town of Cromwell ( 1940 )

BALDWIN, J.

At about 8 o’clock in the evening of August 29, 1939, the plaintiff Cavanaugh was driving his automobile easterly on Evergreen Road in Cromwell with the plaintiff Carlson, a passenger therein, when they were in an .accident in which they received personal injuries and damages to the automobile for which these actions were brought to recover damages.

The cases were tried together. It was claimed that the .accident was caused by a defective condition in the traveled Dart of the road.

Evergreen Road is a cross-country road one and nine-tenths miles long. It is a rather narrow single lane dirt road. There are five houses on this road. Travel is very light, averaging •only eight cars in nine hours.

The town maintains 2S miles of highway of which this is .a part. In May or June of that year this road had been worked and the shoulder on the southerly side of the road at the scene -of the accident was somewhat soft.

There was testimony offered in support of the plaintiffs’ •claims as to the sise and location of the claimed defect that did not accord with the facts. The accident occurred on Monday •evening. On the Friday night before the accident a hard rain had fallen and an accumulation of rainwater had run down •easterly in the southerly wheel track and thence off of the road into the gutter on that side and had washed out the ■shoulder somewhat, so that there was a depression some 15 or 18 inches from the wheel track which was about eight or nine inches deep. This depression was not located in the wheel track as claimed and was not of the sige or depth claimed.

There was no evidence of the time this condition had existed other than the evidence of a hard rain on the Friday night before the accident and the only reasonable inference is that this rain caused the existing condition.

Upon these facts I cannot find that the town had actual notice nor that the condition had existed for such a length of time as made it chargeable with constructive notice if I could find that a defective condition existed upon this little traveled country road.

Mr. Cavanaugh, as he was operating his car, failed to have his right headlight illuminated and there was no other occasion for him to be off of the traveled portion of this highway. It was his negligence that caused the accident. Judgment may therefore be entered for the Town of Cromwell in each case.