64 Conn. 381 | Conn. | 1894
The defendant is a corporation owning and operating a street railroad in the towns of Danbury and Bethel. By the provisions of its charter it is made the duty of the defendant, among other things, to keep in repair that portion of the streets and highways over which its railway is laid down, and a space of two feet on each side of its tracks, without expense to the municipalities through which
The complaint alleges in substance that on the 21st of September, 1892, in the course of repairs to the defendants’ tracks at the. corner of West and Montgomery streets in Danbury, “the same were by said railway company, negligently and carelessly left at night in a hazardous and dangerous condition, by reason of the natural soil or earth between and around said tracks having been removed by said company to a considerable depth, viz., six inches or more, and said tracks were left exposed, without lights by said company, or other warning to those in passing vehicles on the public highway; ” and that the plaintiff on the night of said 21st of September, while riding with her husband in a Arehicle on said highway at the corner of West and Montgomery streets, “ drove upon and across said railway tracks, then and there being in said negligent and dangerous and exposed condition, and with no lights or warning to give notice of their condition, and said Margaret Shalley Avas violently thrown from said vehicle upon the ground,” and sustained the injuries for which she now seeks to recover.
No statutory notice of the accident or injuries was alleged to have been given, but the complaint in paragraph four sets forth in detail certain facts which the plaintiffs claimed either amounted to a Avaiver of the required notice by the defendant, or estopped the defendant from availing itself of the want of such notice. That paragraph reads as follows:—
“Said John Shalley, husband of Margaret Shalley, and in her behalf and for himself, on the folloAving day, viz., September 22d, 1892, called upon and informed Mr. Samuel C. Holley, president of, and fully authorized t<J act for, said railway companjq of said injury; stated to him the time, place and circumstances of the injury, the occasion thereof, and made demand of the company for damages. At said interview said Holley, president as aforesaid, acting for, and with full power to act for, said railroad company, and who was well aware of the dangerous condition of said railway, after questioning said John Shalley, and ascertaining fully
To this complaint the defendant demurred for the following reasons:—
“1. It appears therefrom that no written notice of the injury, and of the nature and cause thereof, and of the time and place of its occurrence, was left with the defendant or any of its officers, within sixty days from the time of the accident as required by law. 2. The matters alleged in
The court below sustained the demurrer, and thereupon judgment was rendered for the defendant.
It thus appears that the principal question upon this appeal is whether the facts alleged in paragraph four constitute a waiver of the statutory notice, or estop the defendant from availing itself of the want of such a notice.
Before discussing that question it will perhaps be well to notice and dispose of a claim made by counsel for plaintiffs near the close of the argument in this court, to the effect that if § 2673 of the General Statutes must be construed as requiring the notice, therein prescribed, to be given to a private corporation in a case like the one at bar, the requirement is unconstitutional.
This point is not made in the printed briefs, it was suggested rather than argued before us, and the reasons in favor of it were not stated either fully or clearly. It apparently was not made nor decided adversely to the plaintiffs in the court below, and for this reason we should be justified in passing it without further notice; but inasmuch as the point, is fundamental, and if well taken renders a discussion of the former question unnecessary, we will briefly consider and dispose of it.
By its charter, as we have seen, the defendant is charged with the duty of keeping in repair a certain portion of the highways over which its railway is extended, and by statute it, and not the municipalities through which its road runs, is made liable for an injury of the kind alleged in the complaint. A burden and a liability in respect to a limited portion of the highways are thus laid upon the defendant, which are somewhat similar in their origin and nature to the burden and liability imposed by statute upon towns and
The complaint in question must also, we think, be treated as one founded upon the duty and liability thus imposed upon the defendant by its charter and by statute.
Whether a private corporation in a case like this can waive the statutory requirement may perhaps admit of some doubt, but in the view we take of the case at bar it is unnecessary to decide that question. The case was argued before us, in one aspect of it, on the assumption that this could be done, and for the purposes of the discussion merely, we will proceed on the same assumption.
The question then is as before stated, whether the facts set forth in paragraph four constitute a waiver of the requirement of statutory notice, or estop the defendant from availing itself of the want of notice. In discussing it we will also assume for the purposes of the discussion that it sufficiently appears from the complaint that Mr. Holley had authority to bind the defendant by what he said and did.
What then are the facts relied upon to constitute such waiver and estoppel? They relate to what took place at the interview between Shalley and Holley on the day after the accident, and to certain acts of the defendant after the sixty days had expired. At that interview Mr. Shalley told Mr. Holley all about the accident and ended by demand
This then is the extent and the whole extent of the interview : Shalley informs the defendant of the accident and demands damages; the defendant tells him to wait till he ascertains the whole extent of his damage, and then to pre
There is no error.
In this opinion the other judges concurred.