Fitch v. City of Hartford

Beach, J. Whether the city was negligent in permitting a defect of the size and character above described to remain for an indefinite time at the place where it was located, was a question for the jury to determine in view of all the surrounding conditions. The plaintiff’s story was one which the jury might reasonably believe, and the alleged defect was more than a negligible inequality of surface. Its location and dimensions were definitely ascertained, so that the jury could intelligently pass upon the question whether *367 under all the circumstances of location and travel it was a dangerous defect either in its normal condition or when concealed by loose dirt.. So far as these issues of fact are concerned, there was no reason for setting aside the verdict. Nevertheless the court might properly have set it aside on an entirely different ground, because it was based upon a misdirection in charging the jury as set forth in the statement of facts. When a municipal corporation, charged with the duty of maintaining its highways in reasonably safe condition for travel, grants a permit for specified work to be done within the limits of a highway for the private benefit of the licensee, it is, of course, notified in advance of all defects and. obstructions in the highway which may reasonably be expected to arise in the performance of that particular work at the given time and place, and in the exercise of reasonable care it is bound to anticipate and provide for all such defects and obstructions. Boucher v. New Haven, 40 Conn. 456; Cummings v. Hartford, 70 Conn. 115, 123, 38 Atl. 916. Since the duty of exercising reasonable care rests continuously on the municipality, it must also use reasonable care to protect travelers against the negligence of its licensees by a reasonable supervision and control of the work. Carstesen v. Stratford, 67 Conn. 428, 434, 35 Atl. 276. But it is not an insurer of the safety of travelers on the highway, and therefore it is not bound at its peril to provide in advance against unnecessary and unexpected dangers such as may be created in the highway by the negligence of its licensees. In such cases the rule is, not that the municipality is hable for the negligence of the licensee, but that it is bound to use reasonable care in ascertaining the neglect and averting its harmful consequences; and that in the absence of actual notice of a defect due solely to the negligence of the licensee, it is not liable unless it has *368 failed to use reasonable care in discovering the existence of the defect. See 4 Dillon on Municipal Corporations (5th Ed.) § 1723, as modified by Boucher v. New Haven, 40 Conn. 456. The defendant’s bill of exceptions to that part of the charge quoted in the statement of facts is sustained, and the case must therefore stand for a new trial. There is no error. In this opinion the other judges concurred.