86 A. 3 | Conn. | 1913
The plaintiff alleges that on the evening of October 17th, 1909, his horses were drowned in Oneco Pond in the defendant town; that the highway near the place where his horses were drowned was defective and out of repair; that his injuries were caused by this defect; and also that his own negligence did not contribute to his injuries.
The defendant admitted that the plaintiff's horses were drowned, and denied all the other allegations.
Under the issues thus presented, the plaintiff assumed the burden of proof of establishing, by a preponderance of the evidence, each of the three last-mentioned propositions by substantial evidence, upon which the jury might reasonably have reached a conclusion favorable to the plaintiff. If this were not done the nonsuit was properly granted.
The plaintiff offered evidence of the following facts: In the summer and fall of 1909 the plaintiff owned and operated a steam sawmill at Oneco in the defendant town. The plaintiff resided in the town of Killingly, several miles away, and his son, Walter Place, was the plaintiff's foreman and in charge of the work and men in Oneco. One Joseph Ennis had been in the plaintiff's employ more or less for two or three years, and continuously during the summer and fall of 1909, as a teamster engaged in drawing logs to the plaintiff's sawmill.
On the morning of October 17th, 1909, which was Sunday, Walter Place ordered Ennis to take the plaintiff's horses and wagon and draw a load of slabs to Oneco. About ten o'clock in the forenoon of that day, when Ennis went to the woods to load the slabs, he had a quart of liquor with him, which he commenced drinking. He continued drinking this liquor, and, after he had unloaded the slabs, he was so intoxicated that he lay down in the bottom of the wagon and remembered *508 nothing more until some time after dark, when he found himself in the water of Oneco Pond, with the horses and wagon; he then tried to get the horses out of the pond, but was unable to do so. The lines were then tied to the brake. Ennis felt cold and got out of the wagon, went into a woodshed near-by and lay down until morning.
Oneco Pond, where the accident occurred, is a millpond. The distance from the public highway to the edge of the pond, at this point, was about one hundred and twenty-five feet. The highway was about twenty-one feet higher than the pond. From the highway to the pond there was a driveway, which branched off from the public highway. This driveway extended through a barway, and descended down to the pond at a grade of about one foot to every five feet. There were no bars or railing to prevent a team from leaving the highway and going down this driveway into the pond. The water of the pond was shallow for a distance of ten or fifteen feet from its edge. Ennis was familiar with the highway, driveway, and the pond at this place. For about two months of the summer of 1909 he drove down this driveway with a pair of horses and a wagon, and turned between the driveway and the water and backed into the pond for the purpose of getting water for the plaintiff's steam sawmill. The tracks of the horses and wagon, the morning after the accident, indicated that they came down this driveway and went through the shallow water out into the deep water of the pond, where the horses were drowned.
The plaintiff offered evidence to show that Ennis, without the plaintiff's knowledge and consent and contrary to his orders, took and used his horses for the transaction of the business in which they were engaged when the accident occurred.
Assuming that there was evidence introduced from *509
which the jury might have reasonably found that the highway was defective, and that the plaintiff was in the exercise of due care, it does not necessarily follow that the plaintiff has a cause of action against the town. This is not an action of negligence, but an action on a statute which, among other things, provides that "any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair." General Statutes, § 2020. The town had committed no tort against the plaintiff. It is the statute only, which entitles the plaintiff to compensation for his injury when that injury is caused through or by means of a defect in the highway. If the negligence of himself, or of a third person, is also a proximate cause, he cannot say that he was injured by the defect; he can only truthfully say that he was injured by his own or another's carelessness and the defect. The two causes combined give no cause of action under the statute. Bartram v.Sharon,
The bare statement of the facts in this case carries with it the conclusion that Ennis was not in the exercise of due care when the accident occurred. It clearly appears that he was heedless and inattentive to a culpable degree. Ennis was thoroughly familiar with the *510
conditions existing at this place, and he should have been in the possession of his senses so as to have avoided the danger, if possible. If it was dark, as the evidence shows, he was called upon to use that prudence incumbent upon him under such circumstances. Rowell v.Stamford Street R. Co.,
There is no error.
In this opinion the other judges concurred, except HALL, C. J., who concurred in the result, but died before the opinion was written.
