56 A.2d 522 | Conn. | 1947
This is an appeal from a judgment entered on a verdict for the plaintiffs in an action for damages for injuries caused by a defective highway. Error is assigned in the denial of a motion to expunge part of the complaint, in rulings on evidence, in the charge and in the refusal of the court to submit a requested interrogatory.
The claims of proof necessary for a determination of the issues we discuss are as follows: The plaintiffs' claims are that on January 9, 1945, between 10 and 11 a.m., a truck owned by the plaintiff Guyott Construction Company and operated by the plaintiff Morico in a northerly direction skidded on ice on Castle Bridge, which carries route 8 over railroad tracks and the Naugatuck River at the Litchfield-Harwinton town line, and collided with the side of the bridge, injuring the driver and the truck; that route 8 is a main traffic artery and a very heavily traveled highway; that, at the time of the accident and for approximately twenty hours before, the surface of Castle Bridge and the highway immediately south of it was coated with ice and slippery, was unprotected by sand or other abrasive material and was dangerous for automobile traffic without *220 sanding; that this condition was the sole cause of the plaintiffs' injuries and that the defendant had failed to use reasonable care to remedy it.
The defendant's claims are that an ice slick extended from a point about 300 feet south of Castle Bridge on route 8 to three-fourths of the way across the bridge; that the ice was very thin and was caused by fog from the Naugatuck River; that there was no ice on the bridge or on route 8 for four miles north and three miles south of Castle Bridge at 11 p.m., on January 8, 1945, except a small patch which was between 100 and 300 feet south of the bridge and which had been sanded; that for 300 feet south of Castle Bridge route 8 forms a curve, that the roadway on the bridge is straight and level, and that the plaintiffs' truck started to skid on ice on the curve.
The complaint in the action alleges two separate statutory breaches of duty on the part of the defendant arising out of a defective highway and an insufficient bridge railing. The statutes upon which the allegations were based, General Statutes, 1481, and General Statutes, 1419, as amended by 301g of the 1943 Supplement, both require, as a condition precedent to bringing action, that notice be given containing a general description of the injury and the cause thereof, and of the time and place of its occurrence. General Statutes, 1419, as amended by 301g, relating to defective railings, contains the further provision that no such notice "shall be held invalid or insufficient by reason of an inaccuracy in describing the injury, or in stating the time, place or cause of its occurrence if it appears that there was no intention to mislead or that such party was not misled thereby." General Statutes, 1481, relating to defective highways, contains no such provision. The notices served by the plaintiffs contain no reference *221
to injuries caused by an insufficient railing. The defendant moved to expunge from the complaint the allegations claiming liability as a result of an insufficient railing on the ground that they were immaterial and irrelevant. The motion was denied and the defendant has appealed from the ruling. He contends that, in the absence in the notices of claims of injury caused by an insufficient railing, the allegations charging this in the complaint constituted immaterial and irrelevant matter. The trial court in denying the motion filed a memorandum in which it pointed out that a motion to expunge is not designed to test substantial claims. This was correct. In exceptional cases such a motion may be granted on the grounds claimed; Donovan v. Davis,
When the case was given to the jury, an interrogatory was submitted to them as to whether any defect in the railing was a substantial factor in producing the plaintiffs' injuries, and they answered in the negative. This obviates any necessity of considering the charge as to liability of the defendant on that around. Moore v. Waterbury Tool Co.,
The notice is to be tested with reference to the purpose for which it is required. The purpose of the requirement of notice is "to furnish the party against whom a claim was to be made such warning as would prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection." Cassidy v. Southbury,
In issue were the questions whether the defendant had actual or constructive notice of the ice claimed to have made the bridge defective, whether his supervision of the highway was reasonable, how long the ice causing the skid had existed and what was its origin. The plaintiffs had offered evidence that at various points north of the bridge within an hour after the accident there were patches of ice similar to that at Castle Bridge, where the road was close to the river. The defendant called as a witness the foreman in charge of maintenance of the section including the bridge and the road north and south of it and asked him as to the condition of the highway about a mile north of the bridge. The plaintiffs objected on the ground of remoteness. The defendant then stated that, for the purpose of showing that the ice on and near the bridge was of a temporary character and had recently formed from mist rising from the river, he proposed to prove that at 6:15 am. there was no ice on the highway at a place where conditions were similar to those at the bridge, and where officers had testified that later there was ice. The evidence was excluded, presumably on the ground of the objection. The defendant in his brief claims as a further ground for its admission that it showed reasonable inspection by the defendant under our ruling in Tirendi v. Waterbury,
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.