Murphy v. Norfolk , 94 Conn. 592 ( 1920 )

The only question is whether the court erred in directing a verdict for the defendant. That depends on the construction of the statutes concerning liability for defective highways with especial reference to State-aided highways, or, as they are also called in the statutes, State highways. Section 1407 requires towns, within their limits, to build and repair all necessary highways and bridges, "except where such duty belongs to some particular person." Under § 1414 any person injured in person or property by means of a defective road or bridge may recover damages "from the party bound to keep it in repair," on complying with stated conditions as to notice. These are ancient statutes. See page 17, Acts and Laws, 1784. At that time the liability for injuries suffered by means of a defect in the highway was expressed as follows: "The town or person through whose neglect such hurt is done, shall pay to the party so hurt or wounded, double damages." In Goshen and SharonTurnpike Co. v. Sears, 7 Conn. 86, it was held that an action might be maintained against a turnpike company which, by accepting its charter and constructing its turnpike, had become bound to repair the same, although neither the charter of the company nor any statute, other than those above referred to, expressly imposed such a liability for damages on it. Conversely it was held in Lavigne v. New Haven, 75 Conn. 693,55 A. 569, that § 1414, then § 2020 of the General Statutes of 1902, did not authorize an action against a town based upon a defect in that part of a highway which the street railway company was bound to keep in repair. These cases rest upon the reasonable proposition that the duty of repair carries with it the liability to respond in damages for a neglect of that duty, or, as the old statute has it, that the liability rests on the town or person through whose neglect such hurt is done.

Turning now to the statutes concerning State highways, we find that by § 1486 the duty of keeping such highways in repair is expressly imposed on the State Highway Commissioner, who is required to "make whatever repairs are in his judgment necessary." By these words he is not only required to execute the repairs, but to determine their necessity, character and amount. According to the ancient policy of the State this would seem to require the conclusion that the Commissioner was the person liable in damages for a neglect of the duty of repair.

Nevertheless, the plaintiff points to another provision of § 1486 which requires the Highway Commissioner to present to the town a statement of the cost of repairs on State highways, and requires the town, in accordance with the Commissioner's certificate of expense, to "reimburse the State to the extent of one-fourth of the cost of such repairs." The word "reimburse" indicates — and the fact is so — that by these statutes it was not intended entirely to relieve the town from the obligation of paying for repairs on State-aided highways. To the extent of one quarter of their cost the State advances money for the town in paying for such repairs. The plaintiff claims that the obligation to pay for, or to contribute to, the cost of repairs, is the same thing as the obligation to keep in repair; that the Highway Commissioner, in making the repairs is acting as the agent of the town, and that the town performs or neglects its duty according as its agent does or does not keep the highway in a reasonably safe condition for the traffic which it is expected to bear.

We think the statutes forbid the acceptance of these propositions. The Commissioner is the representative of the State, which for its own reasons has taken the entire control of the repairs of State highways away from the towns and put it into the hands of its own agent. The towns have no authority over the Commissioner; but, on the other hand, his discretion and judgment control the towns. In the matter of initiating, directing and executing repairs, he is their superior rather than their agent. And, as if to emphasize that fact, the statute provides that he "shall have the right to enter any town in which the State has constructed any road and make whatever repairs are in his judgment necessary."

It is entirely reasonable and proper that the Commissioner should be held liable for injuries caused by a neglect to repair such highways, and not the town which has nothing to do with such repairs except to pay one quarter of their cost.

The State, in recognition of its ancient policy, has by § 1515 consented that its agent may be sued. It is said that because this section is printed in the chapter entitled "Trunk Line System," it does not relate to State highways. But the subtitle of the section in question is "Damages for injuries sustained on State Highways," and its language authorizes an action against the Highway Commissioner for injuries sustained "by means of a defective road or bridge which it is the duty of the state highway commissioner to keep in repair, or by reason of the want of any railing or fence on the side of such bridge or part of such road so raised above the adjoining ground as to be unsafe for travel, which railing or fence it is the duty of said highway commissioner to erect and maintain."

There is no error.

In this opinion the other judges concurred.