Town of Hamden v. New Haven & Northampton Co.

Hinman, J. One question submitted to our consideration in this case is, which of the two railroad corporations that are parties to the case is liable to indemnify the town, provided the court is of opinion that either of them is so liable. The injury for which the town has been subjected to damages was caused'by-an embankment in the highway built by the New Haven and Northampton Company, in order to raise the grade of the highway to a level with the track of their railroad. It was a work,'therefore, connected with the construction of that railroad, in which .the New York and — 165 — New Haven Company had originally no interest whatever; and although the latter company are now operating that road under a written lease, yet the terms of it are not before us, and we can only say that we know of no facts which are sufficient to shift any liability, growing out of the neglect to complete the embankment as a substituted highway, from the company primarily liable therefor. The lease to the New York and New Haven Company, though referred to as having been made a part of the case, has not been furnished us, and therefore can not be considered. We suppose, however, that as third persons can not be presumed to be conversant with the private arrangements of the two companies, they may look to the corporation which is bound by its charter to perform the work which is claimed to have been negligently done. If there is any arrangement between the two companies, by which one of them is, by contract, to perform this work for the other, that may raise a question of indemnity between them, which can be settled between themselves, or made the subject of a subsequent suit, as they shall determine. . We have not the facts which would enable us to determine it, and shall not, therefore, attempt it. But the principal question in the case is, as to the liability of either of these corporations to indemnify the plaintiffs against the damages which have been recovered of the town, in consequence of the neglect to erect a sufficient railing on the sides of the embankment; where the highway crosses the railroad. The charter of the New Haven and Northampton Company, (4 Private Acts, 890,) authorizes the company to so change or alter any highway which is so located that the railroad can not be judiciously laid out and constructed across or upon the same without interfering therewith, in .such manner that the railroad may be made on the best site of ground for that purpose, provided that said corporation shall put said road in as good repair as at the time of altering the same. Another provision of the same section makes ■ it the duty of the company, when crossing any highway, to restore it to its former state, or in sufficient manner not to — 166 — impair its usefulness; and similar provisions are to be found in the general statutes, in relation to all railroads, where they intersect or cross any highway. Rev. Stat., (comp. 1854,) 748, sec. 12. It is obvious that, without the authority of the legislature, the railroad corporation would have no right to interfere in any way with any ordinary road or highway, and every obstruction which such corporation might cause to be placed in such a road would stand upon the same ground as an obstruction similarly placed by any individual; and an obstruction endangering the public travel would be a nuisance, for which the party placing it there would be liable in damages in case any injury should be caused by it. Linsley v. Bushnell, 15 Conn., 225. The railroad corporation then, in order to justify the placing of this embankment in the highway, resort to their charter, and to the general statute authorizing it. But neither the charter nor the general statute authorize it except upon terms, and these terms are contained in the provisos which have been referred to. They are very explicit. There is no uncertainty in respect to their meaning, and -they only authorize the old highway to be altered, provided it is restored to its former state, or put in as good repair as at the time of altering the same. We suppose, if the accident for which Baker recovered damages of Hamden had happened while the railroad corporation was engaged in making the embankment, or so soon after its completion that the town could not be presumed to have notice of its condition, that no doubt would exist as to the liability of the company to indemnify the town. The case of Lowell v. Boston and Lowell R. R. Co., 23 Pick., 24, seems to be conclusive upon this point, and the authority of that case has not been questioned by counsel on either side. It is said, however, that in such case the town, having no power to prevent the act, and no reasonable opportunity of guarding against its consequences, is in no fault, and therefore can call for an indemnity, which it is insisted the town can not do after it has had sufficient notice of the defect, and has had a fair opportunity to repair it, which it has neg — 167 — leeted. But in all cases of the recovery of damages against a town by reason of a defective highway, some neglect of duty is always implied. If by some unexpected event, as the sweeping away of a bridge by a freshet, an injury is caused, the town is not liable until a sufficient time has elapsed, so that its knowledge of the fact may be presumed, and it has had time to provide against it. There must, therefore, be some negligence or there is no liability, and if the town is once put in the wrong by its negligence, from the very nature of the case it is impossible to say when such neglect has continued long enough to prevent the town from recovering an indemnity. The law will not undertake to measure the extent of the wrong on any question of this sort. We do not think, therefore, that the right of the town to an indemnity can be determined by a consideration of the length of time that the defect has continued. It is true, as we have said, that there must be a wrong in the town in order to subject it to damages caused by a defective road. But in cases where the defect is in consequence of the neglect of a railroad to restore a highway to its former state, the wrong is rather technical than real as respects the town. It consists rather in imputing to the town, as between it and third persons who have received injuries arising from such defects, the neglect of the railroad corporation, which, by its charter and the general laws of the state in relation to the subject matter, was bound to restore the highway to its former state of usefulness, and thus to repair or remedy the defect which it alone had caused for its own interest and convenience. The town is prevented from interfering with the building of the railroad by the authority of the legislature, until the company has. completed its works," yet while in this condition it is held liable for a neglect which it has no power to prevent. It is equitable, therefore, that the party whose absolute duty it is to restore the road to its former state of usefulness, should indemnify it from the consequences of such a liability •, and it appears to us that it would be unjust to apply to the town, under these circumstances, the principle that there shall be no contribution between joint wrong doers. The relation — 168 — between the town and the railroad corporation is more analogous to that which exists between master and servant, where the master is bound to indemnify the servant for acts indifferent in.themselves and depending on circumstances whether they are unlawful. The corporation is made superior to the town by the legislative authority to do the act, that is, to alter or change the highway, and there is no power of control in the town as to the mode in which it shall be done, and yet it is responsible if it is not done according to the requirements of the statute. Under such circumstances it is difficult to resist the equity of the claim for an indemnity; and we think the answer which a man unacquainted with technical rules would give' to the question, whether under such circumstances the railroad corporation was bound to make the indemnity, is the answer which the law' ought to to give to it. It has been suggested that the statute of limitations might apply to protect the corporation against this liability, but the statute will not protect a party against the continuance of a nuisance, every continuance of which is said to amount to a new nuisance. The railroad charter does indeed legalize the erection of the embankment upon condition that it shall restore the road to its former state of usefulness, which can only be done by erecting good and sufficient railings on the sides of it, and until these railings are erected the embankment is a nuisance to the highway notwithstanding its usefulness to the railroad. If the railroad corporation was prosecuted for a nuisance it must justify under its chartered powers, but it has no power in relation to this subject except upon the prescribed terms, and having failed to perform these it must fail in its justification. It was suggested also, that the town was bound to proceed against the corporation, to compel it to restore the road, by mandamus or otherwise. But we think this no answer on behalf of the corporation, even if it be admitted that it haa power tú do so. The railroad company can not be allowed to say, as an answer to the claim for an indemnity against its neglect of duty, that the town ought to have prosecuted — 169 — us for the neglect, and because it has not done so the claim is now a stale one. - We have no occasion to inquire here as to the effect of the lapse of sufficient time from which to raise a presumption that the highway was in fact restored to its former state by the erection of the necessary railings. The time since this embankment was first made is too short for any such question to be raised, and the whole case therefore is resolved into the question whether the right to an indemnity, as against the railroad corporation, is limited to the short period which was sufficient to give the corporation a fair or reasonable opportunity to make and complete the restoration of the highway, which by their charter they were bound to restore. We think there is no such limitation. None is spoken of in the case of Lowell v. The Boston and Lowell Railroad Co., before referred to, and although the circumstances of that case did not make it necessary to consider the point particularly, yet, bad the case in fact rested upon any such limitation, it is scarcely possible that it should not have been noticed. Nor is any such limitation to the right of a town to recover an indemnity for damages to which it has been subjected for a defective road built by a railroad corporation, made in any of the Vermont cases which have been cited, in which such indemnities appear to have been recovered. We think, therefore, that no such limitation exists, and we advise judgment to be rendered against the New Haven and Northampton Company for the amount claimed by the plaintiffs as an indemnity. In this opinion Storrs, C. J. concurred. Ellsworth, J. thought that, assuming it as true that the omission of the railroad company in 1847, was the cause of the injury suffered by Mr. Baker and his wife in 1855, (which seemed to him to be going as far as it would do, since in 1847 the railing might not have been necessary, or if then put up might not have lasted until 1855,) the town of Ham-den ought not to recover, in as much as the supposed omission was of more than six years standing, and no cause was — 170 — shown why the statute of limitations should not apply; and further, because the town whose duty it had been during all this time to keep this part of their highway in repair, had openly, knowingly, and continually neglected their duty, and allowed what at the time was a trifling default, if any at all, to become the occasion of a great and aggravated injury. He thought the damages which the town had suffered were not consequential nor proximate in their relation to the omission of the railroad company, any more than if a person should carelessly break in another’s window, and the latter, instead of getting it repaired at a trifling expense, should choose to leave it broken, and let the storms beat in and ruin the furniture and injure the house itself, and then sue for the entire loss, and should insist that such loss was the consequential and proximate result of the breaking of the window. He thought, that as it was the admitted and peculiar duty of the town to keep this highway in a safe condition, it was their neglect which was the proximate and true cause of the injury for which they had been adjudged liable, although remotely some default in the railroad company might possibly have contributed to their liability. On these grounds he was of opinion that the town should not recover. Judgment against the New Haven and Northampton Company advised.