Congdon v. City of Norwich

| Conn. | Oct 15, 1870

Seymoue, J.

The question in this case is, whether the plaintiff suffered the injury complained of by means of a defective road. The issue was closed to the court and is found in favor of the plaintiff: The facts are stated in detail on which the judgment is-based. The defendants insist that the facts thus specially found do not in' law warrant the conclusion that the road was defective. In general the question whether a road is or is not defective must be one of fact and not of law. It depends on a great variety of circumstances, which it is impracticable to group together into a legal. proposition. A better and safer condition of roads may reasonably be expected and required in the summer than in spring and winter, in populous cities than in unfrequented districts. Much may depend upon the means at command, upon general usage, upon the question whether the defect is the result of a sudden accident or has been long neglected. . So many circumstances' are involved in the enquiry that courts have usually treated it as one of fact to be submitted to a jury; not however but that questions of law may arise as to alleged defects. Thus, in this case, the judge having found that there was no structural defect where the injury happened, and that whatever defect existed was in consequence of the accumulation of ice and snow upon the sidewalk, the court may properly be called on to decide as matters of law, whether, first, a sidewalk may be a part of the road which a city is bound to keep in repair, and, second, whether any duty devolves upon those who are bound to keep roads in repair in respect to snow and ice, and whether in point of law a road may be defective,without structural defects, by means of accumulations of snow and ice. It is conceded that in this rigorous climate the duty of cities and towns in respect to snow and ice is and must be very limited. When an ice storm covers the entire surface of the earth with ice the public authorities cannot be expected to scatter sand and ashes upon all the places of public travel within their limits; and when snow storms cover the ground with irregular heaps, liable to constant change by the force of changing winds, it cannot be expected that the public authorities will make paths as level and smooth and safe as summer roads are reasonably required to be; but it has become familiar law in Connecticut, and not controverted by counsel in this case, that some duty in regard to snow and ice devolves upon cities and towns. Accumulations of snow and ice may produce such a condition of the road as to cause it to be dangerous and defective, and in each particular case of alleged defect from such cause the question will depend upon an inquiry of fact, whether under all the circumstances of the case the road was in a reasonably safe condition, and whether those who were bound to keep the road in repair are justly chargeable with negligence and want of reasonable care in relation to it. As the country advances in wealth and resources and means of improvement many defects which are now properly tolerated may become actionable. A road which now would properly be regarded as reasonably safe might cease to be so regarded if in consequence of increased facilities and means and skill it could at trifling expense be made much safer. If therefore we should undertake to give a legal definition to a defect in a highway, such definition however just and appropriate to-day, might by change of circumstances become inappropriate by the lapse of a few years. Certain matters are necessarily left as matters of- fact in each particular case without'exact legal definition, as fraud, negligence, and the like ; and what are defects in highways must in general be so left. Hall v. City of Lowell, 10 Cush. R., 260.

In the case under consideration we cannot pronounce as matter of law that the facts found do not warrant the conclusion to which the court below came. The place where the injury happened was quite steep in Main street; the peculiar construction of the ground and sidewalk' caused an irregular and uneven accumulation of ice and snow; the place had been more or less slippery and dangerous for two weeks. Here is evidence relevant to the case tending to show a defective condition of the sidewalk, and it might in law justify the finding of the issue in favor of the plaintiff. We have no cognizance of the question as a question of fact; the case is not before us for a verdict against evidence, but for conclusions alleged to be unwarranted by law.

The defendant also claims that as matter of law it was negligence in the plaintiff under the circumstances found to attempt to pass over the ice in question. It is said, in the first place, that the plaintiff knew the condition of the sidewalk. Such knowledge is important evidence tending to show the plaintiff’s negligence, but by no means conclusive. This precise point was so decided in Reed v. Northfield, 13 Pick., 94. If we should adopt the rule that a party cannot recover for injuries arising from defective roads and bridges merely because he knew of the defect, a town might allow a bridge to remain in a dangerous condition so long that its unsafe condition became known to all persons, and then claim exemption from liability by reason of the grossness of its own neglect. So too the fact, which is urged in the second place, that the plaintiff might to some extent have avoided the danger by leaving the sidewalk and taking the carriage path, is relevant evidence on the question whether he acted with ordinary care, but not conclusive. It was decided in the case of Williams v. Clinton, 28 Conn., 266, in a case similar to tlie present, that the question of the plaintiff’s negligence was one of fact, and it was evidently so regarded by the judge who tried this cause at the circuit.

We think there is no error in the judgment complained of.

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