Boucher v. City of New Haven

| Conn. | Nov 15, 1873

Carpenter, J.

The defendants ordered the construction of a side-walk in one of the streets of the city, and instead of doing the work and assessing the expense upon the adjoining proprietor, permitted the proprietor to do it himself. The work thus ordered necessarily caused an obstruction or defect in the street which rendered it dangerous, and the proprietor neglected to use proper safeguards to prevent accidents. The court below has virtually found that the defendants had no notice of the condition of the side-walk; but it is further found that they did not exercise reasonable supervision over the work while being done, and that, if they had exercised such supervision, they would, have known of its condition, and would have had a reasonable opportunity to repair the defect before the injury occurred. The court held the defendants liable for an injury sustained by Mrs. Boucher in consequence of the defect, and the defendants ask for a new trial.

The record presents two questions.

1. Was it the duty of the defendants to supervise the work done by the proprietor, and to use, or cause to be used, suitable precautions to prevent accidents ? This question is answered in the affirmative by the decision of this court in Manchester v. City of Hartford, 80 Conn., 118. An attempt is made to distinguish this case from that, in this, that there the defect was the result of neglecting to repair, and was “ palpable, dangerous, and had existed for a long timewhile here the defect was necessarily caused by the construction of the side-walk, and the negligence consisted in not properly guarding the excavation, or placing lights about the same, or along the walk, for the safety of travelers, and it does not appear how long it had existed. But the distinction exists only in the outward circumstances of the case. The principles of law applicable to the two cases are precisely the same. No reason has been or can be suggested why a city should be liable for neglecting to cause an adjoining proprietor to repair a side-walk, and not liable for neglecting to see to it that it is repaired or constructed in a safe manner. We entertain no doubt therefore that the court below correctly decided that it was the duty of the defendants to exercise a reasonable supervision of the street at the time and place in question.

2. Did the court err in holding the defendants liable, without finding that they had notice, express or implied, of the defective condition of the side-walk ? It is doubtless true as a general rule, that before a municipal corporation, charged with the duty of maintaining a highway, can be made liable for a defect therein, it must have notice, actual or implied, of such a defect. Manchester v. City of Hartford, supra; Bill v. City of Norwich, 89 Conn., 222. Many other cases might be cited in support of that proposition. But that principle has no application to a case in which the ignorance of the defect was th$ result of a clear and unmistakable omission of duty. If the first point in this caso is correctly decided, it is decisive of this also ; for it then became the duty of the defendants to know of the defect, if any existed, and their not knowing it is itself negligence ; and such negligence cannot possibly have the effect of excusing them for not repairing, or properly guarding, the defect in question.

A new trial is not advised.

In this opinion the other judges concurred ; except Park, J. who having tried the case in the court below, did not sit.