Hill v. Way , 117 Conn. 359 ( 1933 )

I am not able to agree with the rule of law as to the duty of the defendant stated in the majority opinion. The plaintiff was a party to the creation of an obstruction in the highway amounting to a common nuisance, and was equally responsible with the others for the creation of that nuisance. The question presented is, what duty did the defendant driver owe to him to avoid the danger of his suffering injury. Whether one owes a duty to another and if so the nature of that duty depends upon the relationship in which they stand to each other. Pomponio v. New York, N. H. H.R.Co., 66 Conn. 528, 536, 34 A. 491; Whitney v. NewYork, N. H. H.R. Co., 87 Conn. 623, 630,89 A. 269. Counsel cite no case, and our investigation has disclosed none, in which the question is presented as to the duty owed by the driver of an automobile upon a highway to one engaged in maintaining an obstruction upon it in the nature of a common nuisance.

The analogy to the case of the duty owed to a trespasser upon property readily occurs, for both are wrongdoers, engaged in wrongs not greatly dissimilar in the aspect involved in the case before us. As to trespassers, the rule is generally stated to be that until their presence has become known the only duty owed to them is to avoid injury to them by wilful or wanton acts. 45 C. J. 742; Kalmich v. White,95 Conn. 568, 571, 111 A. 845. This statement is so general as perhaps not to be greatly helpful in particular cases. Its scope is illustrated, however, by such a case as Johnson v. Patterson, 14 Conn. 1, where we held the defendant liable for poisoning his neighbor's chickens which were trespassing upon his land and disapproved the doctrine that a landowner would not be liable for injuries done to trespassers by such means as concealed spring guns and the like. To the general rule we have stated, we have recognized an exception where the owner of property or his servants know that the presence of trespassers is to be expected, and have held that there is in such a situation a duty to exercise a reasonable outlook to discover their presence.Carlson v. Connecticut Co., 95 Conn. 724, 729,112 A. 646. Aside from such cases as we have mentioned, there is no duty to exercise reasonable care to avoid injury to a trespasser until his presence becomes known. Fitzmaurice v. Connecticut Ry. Ltg.Co., 78 Conn. 406, 62 A. 620; Wilmot v. McPadden,79 Conn. 367, 374, 65 A. 157; Whitney v. New York,N. H. H.R. Co., 87 Conn. 623, 630, 89 A. 269;Kalmich v. White, supra; Salemme v. Mulloy,99 Conn. 474, 480, 121 A. 870; Waselik v. Ferrie ConstructionCo., 114 Conn. 85, 87, 157 A. 642; Sheimbob v. Ringling, 115 Conn. 62, 64, 160 A. 429. On the one hand, a person who sees fit to commit a trespass is deemed to assume the risk of any dangers he may incur or, to put it in the vernacular, he takes his chances. Wilmot v. McPadden, supra; Pastorello v.Stone, 89 Conn. 286, 289, 93 A. 529; 1 Street, Legal Foundations, 155. On the other hand, as the presence of a trespasser is not to be expected there is not present that element of foreseeability of danger inherent in the concept of negligence. Carlson v. ConnecticutCo., supra; 1 Street, Op. Cit., 155, note.

These same elements enter into the situation in the case of one who unlawfully puts an obstruction in the nature of a common nuisance across a highway. He is engaged in a wrongful act and may properly be deemed to have assumed the risk incident to his conduct; and the driver upon the highway has no reason to expect that he will be confronted by an unlawful obstruction. Such a driver owes no duty to avoid injury to one responsible in whole or in part for that obstruction until he becomes aware of it or at least knows that its presence is reasonably to be expected; and then he does owe the duty to use reasonable care to avoid running into it. In the instant case there is no claim made by the plaintiff that the defendant saw the obstruction in time to avoid it or had any reason to expect it. It is conceded that there was nothing in the defendant's conduct amounting to recklessness, and therefore necessarily nothing amounting to wanton or wilful misconduct. The charge of the court was, if anything, too favorable to the plaintiff.

In this opinion BANKS, J., concurred.