30 Conn. 535 | Conn. | 1862
Under the defendant’s motion for a new trial, iwo questions are presented for our determination.
Eirst, it is claimed that the judge should have charged the jury that, in order to justify a verdict for the plaintiffs, they must find not only that the excavation on the defendant’s hind was left by him in a condition dangerous to passengers on the adjoining street who were exercising ordinary care, but also that the excavation was substantially adjoining the highway, so that a person actually upon the highway might be precipitated into it.
In regard to this objection we may remark, in the first place, that the charge which the defendant in fact requested (he court to give, was that if the excavation was wholly on the defendant’s land, at any distance from the line of the street, the plaintiffs could not recover. The difference between the charge requested and the principle contended for is manifest, but we do not care to dwell upon it, because we think that in making the defendant’s liability to depend upon the dangerous condition in which the excavation was left by the defendant, rather than upon its distance from the street, the judge adopted the true criterion.
Our statute (Rev. Sffit,, tit. 24, sec. 7,) made it the duty of the city +5 erect and maintain a good and sufficient fence or railin, on the side of the street, if it was “ so raised above
And as the dangerous character rather than the exact location of the excavation determined the duty and consequent liability of the city in regard to it, so the duties and liabilities of “the defendant in this respect must be determined by the same criterion. His right to make the excavation-was undeniable, and was not denied ; but he was bound to exercis- [hat right with a due regard to the co-existing rights of th 1 city and of travelers on the street. Sic utere tuo ut alienm-> .-«'.a ladas, is a maxim as universal in application, as it is wisp- ami just in principle.
The defendant had a right to make the excavation, arid, if the fence was his, he had a right to remove that also; but having removed the fence and made the excavation, he had no right to leave the pit unguarded, until time and opportunity had been afforded for the city to assume and perform the duty thus originated and cast upon it by-the defejidant’s aeq Travelers on the street were at all times entitled to, and had
Whether the excavation could, with a due regard to the rights of passengers on the street, be left unguarded, or could not, depended upon the question whether, being unguarded, it endangered the travel or not. If it did not, no matter how near it was to the line of way. If it did, no matter how far it was removed.
We think the question of the defendant’s liability in this respect was placed upon the true ground by the judge’s charge.
In the discussion of this question it is to be taken as conceded, that, before the excavation in question, the street at that place was not so raised above the adjoining ground as to endanger the passage of travelers, or, if it was, that travelers were adequately protected by the board fence which until that time stood upon the line between the street and the defendant’s land, so that up to that time the city had been in no default in regard to a fence or railing there. Then the defendant removed the fence, and made the excavation, and left it quite unguarded from the moment it was made. And the night after it was so made and left, the accident occurred. And thus the defendant’s negligence was the immediate cause of the accident and injury for which the plaintiffs were compelled to make compensation.
In the case of The Inhabitants of Lowell v. Boston & Lowell R. R. Co., 23 Pick., 24, a railroad company, authorized by its charter, made a deep cut across a highway, and erected barriers to prevent passengers on the way from falling into it; but having occasion to use the way they removed the barriers, and left them off while their work was suspended for the night. Two passengers fell into the cut, and for their injuries thus occasioned they sued, and recovered compensation from the town. Then the town brought this action for indemnity, and the court hefd it entitled to recover, although it was conceded that the defendants had a right to make the cut, and were not bound to erect the barriers, provided they gave reasonable notice of their intended operations to the officers of the town, and that they had also a right to remove the barriers, (though they had been approved and adopted by the town,) but that they were bound to replace them when their work was suspended for the night. “ This,” says Mr. Justice Wilde, “ was imperatively required by a due regard to public safety, otherwise an accident might happen before the town had notice, actual or constructive, and no one would be responsible for the damages. * * Corporations as well as individuals are bound so to exercise their rights as not to injure others. The
The cases cited by the defendant’s counsel are clearly distinguishable from the one before us. That of Howland v. Vincent, 10 Met., 871, was determined upon the ground that no actionable negligence could be imputed to the defendant. He had excavated his land up to within about six inches of the line of the street, and it had remained in that condition for several days before the accident, with the knowledge of the chairman of the board of selectmen and of the town surveyor of highways, the latter having charge of the highways, and having been in fact employed by the defendant to replace the flagging on the sidewalk and put the premises in order. Hubbard, J., in giving the opinion of the court, said, that the only question was, whether the defendant had been guilty of such negligence as to expose him to the plaintiff’s demand; that there was no law which required him to fence the premises in the situation in which they then were, and that he did not appear to have been guilty of negligence. Whether the town would or would not be liable the court in terms declined to express any opinion.
Now if we are right in supposing that, by the statutes of Massachusetts or otherwise, it was the duty of the town to keep the highway in such condition that it might be used by passengers at all times with comfort and security, it would seem to follow that in suffering such an excavation, within six inches of the line of the street, in a populous town, to remain unguarded for several days, the proper officers of the town having knowledge of its existence and condition, the town was guilty of neglect. Indeed, such an unguarded excavation would seem to be a public nuisance to the way, which it was the duty of the town authorities to abate. Angelí on Highways, § 225. And in either aspect the plaintiff, being (as it was agreed) guilty of no negligence, would seem to be entitled to compensation for his injuries from the town for its manifest neglect. In that case, as in the case at bar, the passenger was entitled to protection, and had a right to expect it because the law required it; and he seems therefore justly entitled to compensation
In the case cited several days elapsed, after the excavation and after the town officers had received notice of its existence, before the accident occurred. The duty therefore which at first rested upon the party making the excavation to provide protection against the danger he had thus created, had shifted from the defendant to the town before the accident, and thus the defendant had become exonerated from his original responsibility. But in the case at bar the accident occurred the night after the making of the excavation, and before the officers of the city could be presumed to have notice of its existence, or had in fact any opportunity to erect the fence or railing which the safety of passengers required.
In Hardcastle v. The South Yorkshire Railway Co., 4 Hurlst. & Norm., 67, the defendants made a reservoir, near to, but not adjoining a public highway, and omitted to inclose it from the way. The plaintiff’s intestate by accident strayed from the way in the night, and falling into the reservoir was drowned. There the defendants had a right to make the reservoir, and no law required that they should fence it in, or required any person or corporation to erect a fence or barrier along the way to prevent travelers from straying off from it. The deceased was bound to know the law, and therefore had no right to expect such protection, and voluntarily assumed the risk of traveling in the dark without it. So that, in reference to his rights, the defendants were chargeable with no wrong and no neglect.
Hounsel v. Smyth, 7 Com. Bench, N. S., 729, was a case of the same character, with this element in addition, that the plaintiff went off from the public road and upon the defendant’s land intentionally, and not by accident.
Under our statute an excavation of such character and di'mensions and so near to a highway as to endanger the passage of travelers, being unguarded, becomes a public nuisance, whether it adjoins the way or not, because it in fact endangers passengers on such way, and then it is the duty of the public to provide for travelers adequate security against such danger, by the erection of a fence or railing between the excavation and the way. And thus the nuisance is in effect abated.
While then we reject the rigid test of liability propounded by the English judges, it will be perceived that the difference between us arises out of the operation of our statute, rather than from any difference of opinion in relation to the principles of the common law applicable in cases of this kind. ,;
Secondly. The defendant in this court contends, that notice to Noyes, the street commissioner, of the existence and condition of the excavation, was notice to the city, and that the city thus having notice through Noyes of such excavation, was by its own negligence in relation to it precluded from recovering against the defendant. And he claims a new trial because the superior court omitted to charge the jury as he requested—that if they should find that the work of making the excavation was done by, or under the superintendence of Noyes, he being then street commissioner, the plaintiffs could not recover. It is a sufficient answer to this claim to say, that the motion expressly states that “ no evidence was offered to show that Noyes assisted in making said excavation personally after the noon of the day before which it was finished, or that he had any knowledge that said excavation was left without protection; ” so that the point could not be made upon any evidence before the jury, and for that, if for no other reason, the defendant was not entitled to the charge requested.
First, because it is not alleged therein that the premises in which the excavation was made were in the defendant’s occupation. But the plaintiffs’ right to indemnity from the defendant was in no way dependent upon the defendant’s occupancy of the land. An entire stranger, one having no interest in the land and claiming none, by removing the fence, making the excavation, and leaving it as the defendant did, would have incurred the same liability as if he had been the occupier and owner both. In this declaration the defendant is called upon to answer for his own misconduct, not for the misconduct of another. He is charged with the consequences resulting from the existence of the excavation because he made the excavation and left it unguarded, not because he owned or occupied the land.
The cases cited by the defendant’s counsel on this point seem inapplicable. In Hilliard v. Richardson, 3 Gray, 350, a carpenter had undertaken to alter and repair a house on the defendant’s land and furnish all the materials for a price agreed upon. He employed a teamster to draw the lumber, and the latter left it in the street. The defendant had no rightful control over the lumber and assumed none. The court held that the teamster was the servant or employee of the carpenter, not of the defendant, and that the latter was not liable. Blake v. Ferris, 1 Seld., 48, was a case of the same character, and determined by the application of the same principles. In the case of Lowell v. Spaulding, 4 Cush., 277, there was a cellar-way under the sidewalk, into a house owned by the defendant but occupied by his tenants. The door covering the cellar-way was out of repair, and a passenger on the sidewalk was injured in consequence. The court held that, in the absence of any agreement between the landlord and the tenants, and as between the latter and the public, it was the duty of the tenants to repair, and that the landlord was not responsible for their neglect. And in Coupland v. Hardingham, 3 Camp., 398, which was an action for an injury occasioned by the want of a railing between the street and an area in front of the
Lastly. The declaration is claimed to be insufficient because it is said that it is not alledged that it was the duty of the defendant to erect a railing, and that no facts are stated from which such duty is inferable. But the plaintiffs’ claim was that by the removal of the fence the excavation became dangerous to passengers on the street, and imposed a new duty upon the city to erect a railing at that place, and that until the city could perform that duty the defendant could not leave the excavation unguarded without a culpable disregard of the public rights and the security of travelers on the street. And this claim we think is set forth in the declaration in appropriate language and with all necessary allegations.
We think the declaration is sufficient.