22 Conn. 208 | Conn. | 1852
The statute relating to highways, requires
the several towns in this state to make and keep in repair all the necessary highways and bridges within their limits, except where it belongs to some particular person, or corporation, to maintain them. And it further provides, that if any person shall receive any injury, by means of any defective bridge or road, the town, which ought to keep the same in repair, shall pay to the party injured just damages. Stat. 1849, p. 416, 417.
It is insisted, on the part of the defendants, that, as their obligation to repair the road in question, was imposed by the statute, and not by the common law, it was incumbent on the plaintiff to aver in his declaration, that such obligation was given by the statute, and that, not having done so, the declaration is insufficient, even after verdict.
It is however alleged, that it was the duty of the-defendants to keep the road and bridge in repair, and that on the tri
Wherever a person sustains an injury, in consequence of the neglect of another to perform some duty, required either by the common law, or by a public statute, in an action to recover damages for such injury, he need not state, in his declaration, the manner in whioh that duty was imposed. It is enough for him to state such facts as, under the general law, of which courts will take judicial notice, entitle him to the redress he seeks. The statute relating to highways is a public statute, and as such will be. noticed by courts, although not specially set out in the pleadings.
The rule, however, is different, when the action is brought to recover a penalty given by statute. There, it is necessary to aver, that the acts complained of were contrary to the statute imposing the penalty.
Thus, the liability of towns to support their paupers, residing in other towns, is created by statute, and not by the common law; and yet, when they are sued for such sup: port, it is not necessary that there should be an averment in the declaration, stating the manner in which such liability arose ;—nor is such the practice.
But, where an action is brought to recover a penalty given by the statute, for carrying a pauper into, and leaving him in, a town where he has no settlement, the plaintiff must aver that the acts complained of, were against the statute. Barkhamsted v. Parsons, 3 Conn. R., 1.
Other' cases, decided in our own courts, might be cited, in support of the principles we have stated. Thus, in an action against a turnpike company, incorporated by a private statute, to recover damages for an injury received, in consequence of a defect in their road, which, it .was averred, it was their duty to repair, the plaintiff having obtained a ver
So in another case, where an action was brought upon the statute relating to fences, to recover the expense of making a part of the divisional fence between the parties, which fence, it was alleged in one count in the declaration (the plaintiff and defendant being adjoining proprietors,) the defendant was bound to maintain and keep in repair; after the issue had been found against the defendant, he moved in arrest of judgment,—on the ground, that the declaration did not state how the obligation arose; but the court held the count referred to sufficient. Sharp v. Curtiss, 15 Conn. R., 526.
Other cases might be cited, of like effect, but these are .sufficient to sustain the decision in the court below. Our opinion therefore, is, that there is nothing erroneous in the judgment complained of.
In this opinion, the other judges concurred, except Storrs, J., who tried the cause in the court below, and was disqualified.
Declaration sufficient.
