Dean v. Town of Sharon

Whether or not, in actions of this character, the injury sustained can properly be regarded as the result of the failure of the town to fulfill the duty imposed by statute — to maintain its highways in a reasonably safe condition for public travel — depends upon the facts peculiar to each case. The location of the highway, the amount of travel over it, the nature and cause of the alleged defect, the length of time it has existed, the knowledge of the town of the defect, and its opportunity, power and means to repair or remove it so as to avert the accident, and the supervision exercised by the town to ascertain the condition of its roads — are subjects the consideration of one or more of which is usually necessary in order to determine the ultimate question of negligence. Landolt v. Norwich, 37 Conn. 615; Burr v.Plymouth, 48 id. 460; Beardsley v. Hartford, 50 id. 529.

The defendant's demurrer to the complaint in the present action is not properly framed to raise the questions of whether, under the practice in this State, an averment that it was the duty of the town to keep the highway in question in repair and that the alleged defect was caused by its failure to perform that duty, is a sufficient allegation of negligence, or whether the complaint should state all the facts necessary to clearly show the negligence of the town; or whether, if the latter be the rule, it has been complied with in this case.

The claim of the first ground of demurrer is, that the complaint is insufficient because it fails to allege that the town or its selectmen had "any notice or knowledge" of the alleged defects in the highway. The allegations of the complaint are that the town was bound to keep this highway in repair, and that the dangerous defects described existed on the day of the accident "and for a long time prior thereto."

Negligence of a town in failing to repair a dangerous defect in a highway, of the existence of which it had no knowledge, may be shown by proof of the continuance of the defect for a long period of time, and that such ignorance of its existence was due to the failure of the town to exercise a reasonable supervision of its roads. Manchester v. Hartford,30 Conn. 118; Boucher v. New Haven, 40 id. 456; Davis v.Guilford, 55 id. 351; Cummings v. Hartford, 70 id. 115, 124. Since it did not appear from the language of the complaint, that in order to show that the town was negligent the plaintiff would be required to prove that it had knowledge or notice of the alleged defects, the complaint was not insufficient because of the absence of such allegation of knowledge. A plaintiff is not required to allege a fact which he may not be required to prove in order to establish a good cause of action.

The complaint contains a sufficient description of the defects in the highway, and of the cause of the injury. It alleges, in effect, that the highway was dangerously defective at a certain definitely described point, by reason of a gully therein extending about eighty feet in either direction from said point and caused by a stream of water running along the highway, which deposited stones and other obstructions therein, and that the highway was also defective "at said point and place by reason of large stones, rocks and boulders projecting into the same," and that by reason of the defects thus described the plaintiff's sleigh was overturned at said described point.

A complaint which alleges in one count several distinct defects in a highway as contributing to cause the injury complained of, is not demurrable upon the ground that it contains no proper allegation of the cause of the injury or of the particular defect which caused it. Several acts of negligence may be alleged in the same count as the causes of one injury, and the plaintiff may recover upon proof of all or of any of them. Carstesen v. Stratford, 67 Conn. 428,436; Ashborn v. Waterbury, 70 id. 551, 556.

The remaining grounds of demurrer relate to the sufficiency of the notice. It is claimed to be defective by reason of being too indefinite, as not containing "a definite and intelligible statement of any distinct cause of the injury," and as not containing "a statement of any defect in the highway which caused the sleigh . . . to overturn."

The time and place of the accident and of the location of the defects in the highway are definitely described in the notice, and we think it contains a sufficient description of the injury and the cause thereof to meet the requirements of the statute and serve the purpose of such a notice — that of giving sufficient information to enable the town authorities to properly investigate the claim. Gardner v. New London,63 Conn. 267, 272; Rowell v. Stamford Street R. Co., 64 id. 376; Budd v. Meriden Electric R. Co., 69 id. 272, 285.

Section 2673 of the General Statutes required a written notice of the injury "and the nature and cause thereof, and of the time and place of its occurrence." Chapter 172 of the Public Acts of 1895, p. 534, which was the law in force at the time of the plaintiff's injury, provides for a written notice of the injury, "and a general description of the same, and the cause thereof, and of the time and place of its occurrence."

The statement in the notice, that the highway was defective at the described point by reason of a gully therein caused by a stream of water running over it, and by reason of stones and rocks at the described point, that the sleigh was overturned by running upon a stone, or into a hole, and that Mrs. Dean was thrown upon her back and head upon a rock, and her left hip dislocated, and her back and head injured, — is a sufficient general description of the injury and the cause of it, notwithstanding the use of the other words in the notice descriptive of the injury and its cause.

As the notice manifestly purports to contain only a description of an injury sustained by Mrs. Dean, it is not rendered ambiguous or ineffective because her husband signed it with her.

The trial court properly overruled the demurrer and admitted the notice in evidence as descriptive of the injury proved at the trial.

The rulings of the court admitting the testimony of the witness Holcomb, and admitting the testimony of the witness Cochrane, after evidence had been offered showing that when the latter examined the road it was in the same condition as at the time of the accident, are clearly sustained by Taylor v. Monroe, 43 Conn. 36, 45, Sydleman v. Beckwith, ibid. 12,Ryan v. Bristol, 63 id. 26, and other decisions of this court.

The objection to the testimony of Dr. Skiff is not pursued in the defendant's brief. We discover no error in the ruling of the court permitting the question which was asked this witness.

There is no error.

In this opinion the other judges concurred.