Cusick v. City of Norwich

Phelps, J. The jury have found that the plaintiff was injured by falling in the evening into an insufficiently protected excavation in one of the sidewalks of a principal street and thoroughfare in the city of Norwich. The excavation was made by a proprietor who adjoined the street in preparing for the erection of a building for his own use, and the question in the court below was, whether the defendant was guilty of negligence with respect to the proper security of the place. The verdict disposed of all the questions made in the Superior Court except that of the propriety of the instruction which was given to the jury, and that alone is presented in the defendant’s motion. The jury were told that if they found the street to be in fact defective, the defendant was liable if it had express notice of the defect; — or if the defect had existed for so long a time as under the circumstances to make the defendant fairly chargeable with notice; — or if it had failed to exercise reasonable supervision of its streets when if such supervision had been exercised it would have had knowledge of the defect and reasonable opportunity to repair it before the injury to the plaintiff occurred, whether it knew of the defect or not. [377] Of tlie first two branches of the instruction the defendant does not complain, and rests its claim to a new trial wholly on the last. Cities and other similar municipal corporations are bound at all times to keep their highways and streets in reasonably safe and proper condition for public use. Sidewalks when necessary to be constructed for public convenience are parts of the streets, and with respect to them a similar duty is imposed, and if by the extraordinary action of the elements or other cause they become temporarily defective and unsafe, they should he properly guarded so as to warn and protect the public. A reasonable degree of care and supervision are involved in this duty, and without their exercise the duty cannot be faithfully performed. Within the limits of the rule laid down by the Superior Court in this case the corporation is primarily liable for excavations or obstructions made or placed in or upon a street by a citizen for his private purpose, and to guard against the occurrence and continuance of such defects some attention and oversight are required. They are certainly necessary when if properly exercised they would give the corporation knowledge of defects and timely oppor tunity to repair them, and if it failed to exercise reasonable oversight and an injury therefrom resulted, the corporation would be culpable, whether or not it had actual knowledge of the defect. Manchester v. City of Hartford, 30 Conn. R., 118. There is no appreciable legal distinction affecting the abstract question of municipal liability, between actual knowledge and the means of knowledge arising from the performance of a duty plainly imposed by law; and where such duty is disregarded, and an injury directly results, the negligence is as apparent as if there had been a defect so long continued as to raise the presumption of knowledge of its existence. We think the jury were properly instructed and that there should be no new trial. In this opinion the other judges concurred; except Park, J., who having tried the case in the court below, did not sit.