Mootry v. Town of Danbury

Carpenter, J. This case stands upon a general demurrer to the declaration. The first count alleges that it is the duty [555] of the town to build, keep, and maintain a bridge over and across a stream of water on a highway; that it did construct and build the same below the plaintiffs’ land very much narrower than the bed of the stream and wholly insufficient for the flow of water, and raised the road bed across the stream in such a manner as to obstruct the flow of water and to dam up the same, and cause it to flow back upon the plaintiffs’ land, thereby doing damage, etc. There is no allegation in terms of negligence or unskillfulness in the construction of the bridge. From, this omission it is claimed that the declaration is, in substance, for a willful and malicious injury. Thus construed the case of Judge v. City of Meriden, 38 Conn., 90, is cited to show that a municipal corporation cannot be liable in such an action. We,do not so interpret the declaration. We think that it clearly charges the defendants with negligence and unskillfulness in the construction of the bridge and the highway over the stream; in constructing it in such a way that there was not sufficient space to allow the water to pass off freely, thereby causing it to set back upon the land of the plaintiffs. The essential elements óf a good cause of action are in the declaration; the omission to say in so many words that the defendants were guilty of negligence, when the court can see from what is stated that negligence did exist, is a defect in form and not of substance, and therefore is not reached by a general demurrer. But a more important question, and the real question in the case, is, whether the defendants are liable for such an injury. The only case in this state cited by the defendants in support of their claim that they are not liable, is Chidsey v. Town of Canton, 17 Conn., 475. That was an action against the town for damages sustained, by the husband and father, in consequence of an injury to the persons of his wife and daughter, caused by a defective bridge. The court held that, while such damage (the loss of service, expense of nursing, &c.,) was damage to property in a certain sense, yet it was not such property as the statute contemplated, and that there [556] fore the town, was not liable. The case turned wholly upon the construction given to the statute — that it did not extend to this species of property. The application of the principle of that case to this is not very apparent. There was there a defect in the bridge and railing which endangered travelers. Here there is no such defect. The negligence consists, not in leaving the road bed defective and dangerous, but in constructing it improperly and thereby causing injury to adjacent property. In that case the statute expressly made the town liable for injuries caused by a defective bridge to certain kinds of property therein enumerated. The court held that the species of property injured in that case was not embraced in the statute. That statute was designed to enforce the duty of keeping the road bed in a suitable condition to accommodate the public travel. 'In strictness it has no application to this case. It makes towns liable for injuries resulting from a neglect to do what the statute requires, and has no reference to injuries resulting from negligence in doing what is required improperly. The liability of the defendants therefore, if liable at all, must rest upon broader grounds than that statute. The statute simply compels them to do by making them liable in damages if they fail to do. A principle of universal application — that every man shall transact his lawful business in such a manner as to do no unnecessary injury to another— compels them to do what they are required to do in a proper manner. In other words, towns will not be justified in doing an act lawful in itself in such a manner as to create a nuisance, any more than individuals. And if a nuisance is thus created, whereby another suffers damage, towns like individuals are responsible. Keeping this distinction in mind let us briefly refer to some of the recent utterances of this court. In the case of Young v. City of New Haven, 39 Conn., 435, the defendants were macadamizing a street and used a steam-roller. It was left over Sunday near the part of the highway over which the travel passed and frightened the plaintiff’s horse, whereby the plaintiff was injured. The [557] case is distinguishable from the present one in this, that the leaving of the steam-roller in close proximity to the traveled part of the street was not essentially a part of the process of repairing; also that the position of the roller constituted a defect in the highway. Nevertheless it was claimed that the injury was the result of the negligence of the agents and employees of the city in the use and care of the roller. The negligence was certainly very closely related to negligence in the mode of doing the work. The court says — “The rule of law that governs in-cases of negligence is simple and easily understood. * * Did the defendants exercise reasonable care to avoid the injury to the plaintiff ? Reasonable care is the criterion by which to determine whether or not a party has been guilty of culpable negligence. Every person is bound to exercise that degree of care to avoid injury to others in all that he does.” In Judge v. City of Meriden, 38 Conn., 90, the street commissioner in an emergency and when there was a large quantity of surface water to be disposed of, opened a crosswalk and thereby turned the course of the water so as to overflow the premises of the plaintiff. The court held that if it was to be regarded as a wanton and malicious act, committed for the purpose of injuring the plaintiff, it was not the act of the defendants, and they were not liable. If on the other hand he acted on his best judgment, even if his action was hasty or negligent, his relations to the defendants were not such as to make them liable for his acts. Butler, C. J., while not dissenting from the legal principles laid down, said: “ But I am inclined upon reflection to think otherwise, and to hold that, if the court found that the defect in Main Street which the commissioner attempted to remove, was occasioned by the wrongful elevation of Main Street, without a suitable provision for the passage of water so as to protect it from excessive overflows from Veteran Street, the-corporation was directly responsible for the defect occasioned by such overflow, and the court was right in holding them liable for the consequences which naturally and necessarily resulted from the removal.” [558] It seems that that learned jurist had no doubt that towns were liable for the consequences of an improper construction of a highway. We discover nothing in the opinion of the court which is inconsistent with that view. The Chief Justice and the other members of the court differed only in the construction of the record. But the case of The Danbury & Norwalk Railroad Co. v. Town of Norwalk, 37 Conn., 109, is more directly in point. The only difference between that case and this is, that that was a petition in chancery to restrain the town from committing the wrong, and this is an action at law to recover damages for the wrong committed. The principle applicable to the two cases is the same. The injunction was granted only because the contemplated action of the town was an invasion of the legal rights of the railroad company. If that was so in that case it is in this; and if the defendants have invaded the legal rights of the plaintiffs they are responsible. The conclusion is inevitable. The reasoning of the court assumes that a town would be liable in a case like this. In speaking of the power and duty of towns in respect to highways, the court say (p. 119):— “ The authority is clear and the duty imperative; always subject however to the salutary qualification, interposed for the protection of others, that this authority shall be so exercised, and this duty discharged in such a manner, as to occasion no wanton injury to the property or rights of other persons, natural or artificial.” This is sound law and is .abundantly sustained by the authorities cited. It seems to us impossible to hold that this town is exempt without overruling that case. We regard the principle there enunciated as sound and in harmony with decided cases elsewhere. We advise the Superior Court to overrule the demurrer. In this opinion Pardee and Loomis, Js., concurred; Park, C. J., and Granger, J., dissented.