Summary
In Graham v. Smith, 25 Conn. Sup. 123, 125 (Super.Ct. 1963), the court held that the duty imposed by General Statutes 16-119a(b), now codified at 13b-292 involves a public duty.
Summary of this case from Herasimovich v. National R.R. Passenger Corp.Opinion
File No. 6439
A municipality, in performing its statutory duty of erecting traffic control devices at private railroad crossings or requiring the owners of such crossings to do so, is carrying out governmental duties for the benefit of the public generally. Accordingly, a private individual may not sue a municipality for negligence in failing to perform its duties under the statute.
Memorandum filed November 6, 1963
Memorandum on demurrer of defendants the town of Wilton and Vincent J. Tito. Demurrer sustained.
Slavitt Connery, of Norwalk, for the plaintiff.
T. H. O'Sullivan and J. D. McHugh, of New Haven, for defendant trustees of The New York, New Haven and Hartford Railroad Company.
Paul V. McNamara, of Bridgeport, for defendants the town of Wilton and Vincent J. Tito. Pullman, Comley, Bradley Reeves, of Bridgeport, for defendants Ralph and Lorraine Pottle.
Lepofsky Lepofsky, of Norwalk, for defendant Barbara Campbell.
Goldstein Peck, of Bridgeport, for defendants the town of Norwalk, John Sutton, Maurice Sansouci, Max Orlins and Barbara Campbell.
In this action, arising out of a collision between a motor vehicle and a train at a private railroad crossing in the town of Wilton, paragraph 14 of the complaint alleges negligence against the defendants the town of Wilton and its first selectman, Vincent J. Tito, for failure to require the owners of the private driveway which crossed the tracks to erect and maintain traffic control devices. Plaintiff relies upon § 16-119a (b) of the General Statutes, requiring each town either to erect and maintain such devices or to require the owner of such private crossing to do so. In other words, these defendants are being sued for failure to perform the duties imposed upon them by the statute mentioned.
In a companion case in this court involving the same issues, Superior Court, Fairfield County at Stamford, No. 5727, Campbell v. Pottle, the town of Wilton was let out on a demurrer sustained on the ground that "the duty imposed by the statute was for the benefit of the public generally and not for the plaintiff's decedent individually." (See memorandum filed by Shannon, J., April 19, 1963.) A subsequent motion to expunge an amended third count which set forth substantially the same cause of action was granted by this court on September 19, 1963, on the same grounds. Consistency requires the sustaining of this demurrer on the same grounds.
The statute in question imposes a duty on every municipality and on the highway commissioner, but in performing this duty the municipalities and the highway commissioner are performing governmental duties for the benefit of the public, and not for corporate or individual profit, and accordingly no cause of action accrues for the benefit of any private individual under the statute. See Leger v. Kelley, 142 Conn. 585; Stiebitz v. Mahoney, 20 Conn. Sup. 129; but see Stiebitz v. Mahoney, 144 Conn. 443 . As stated in Dennis v. Shaw, 137 Conn. 450, 452, "`[n]o statute is to be construed as altering the common law, farther than its words import.'"
Plaintiff's brief places great emphasis on what the legislature intended this act to accomplish, but we are interested not in what the legislature intended to say but in the meaning of what it actually did say.