29 A.2d 841

ADLEY EXPRESS COMPANY v. CITY OF NEW HAVEN ET ALS.

Supreme Court of Connecticut

MALTBIE, C.J., BROWN, JENNINGS, ELLS and DICKENSON, Js.

There is a presumption that public officers have done their duty until the contrary appears. This presumption does not exist as to a private individual’s compliance with the law. The top of the plaintiff’s motor truck was damaged by a collision with the under part of a railroad bridge over the street. The clearance under the bridge was ten feet ten inches, the approximate height of the truck. The bridge had been erected by the railroad in 1879 under order of the railroad commissioners upon petition of the defendant city asking that it be erected at a grade to leave a twelve-foot clearance above the street. The street was repaved in 1921 and no change was made in

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it thereafter until the time of the accident in 1941. The plaintiff claimed that defendant reduced the clearance one foot two inches between 1879 and 1921 by various pavings of the street, this claim being based on the presumption that the order of the railroad commissioners in 1879 requiring a clearance of twelve feet was obeyed. Held that there could be no such presumption as to the railroad company, a private individual, and the court’s finding that no act of the city materially changed or decreased the clearance, which was amply warranted by the evidence, could not be disturbed. Any liability of the city for failing to take steps to remove a nuisance created by another would be predicated upon a breach of a governmental duty in the maintenance of a highway, for which no action will lie unless imposed by statute.

Argued December 3, 1942

Decided January 8, 1943.

ACTION to recover damages for injuries to the plaintiff’s truck, alleged to have been caused by the negligence of the defendants and by a nuisance created by them, brought to the Court of Common Pleas in New Haven County and tried to the court, Pickett, J.; judgment of nonsuit in favor of the defendants Palmer et als., Trustees, and in favor of the named defendant, and appeal by the plaintiff from the latter judgment. No error.

Louis Feinmark, with whom was Maynard M. Lund, for the appellant (plaintiff).

A. Frederick Mignone, with whom were Harold C. Donegan and, on the brief, Vincent P. Dooley, for the appellee (named defendant).

BROWN, J.

In this action to recover for damage done to the top of the plaintiff’s motor truck by a collision with the under part of a railroad bridge over James Street in New Haven, the plaintiff claims it was entitled to recover against the defendant city on the ground of nuisance. These material facts are undisputed: On May 4, 1941, and for many years prior

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thereto, the defendant city maintained within its limits a public highway known as James Street. During this period there was a railroad bridge over this street, owned, constructed and maintained by the New York, New Haven Hartford Railroad Company. This bridge was erected about 1879, under order of the then railroad commissioners, upon petition of the defendant city asking that it be erected at a grade to leave a twelve-foot clearance above James Street as then existing. In 1919 James Street was paved with water-bound macadam, and in 1921 the defendant city caused a new surface of asphalt to be laid over the old pavement, involving the scarifying, leveling and bringing to grade of the old surface under the direct supervision of engineers of its department of public works. This resurfacing did not materially change the elevation of the street surface or materially decrease the bridge clearance as existing in 1919. On May 4, 1941, the minimum clearance under the bridge girder at the center line of James Street was ten feet and ten inches. No sign was maintained to indicate the clearance. No change has been made in the bridge or street level since the street was repaved in 1921. On May 4, 1941, the plaintiff’s driver was operating its heavily loaded trailer truck, which was approximately ten feet and ten inches in height, in an easterly direction along James Street, and as it passed under the bridge it’s top collided with the middle girder causing about $500 damage for which recovery is sought in this action.

The positive act of claimed misconduct upon which the plaintiff relies is the action of the defendant’s engineers in setting the grade in 1921. While it does not claim that any evidence was produced to show that there actually was a clearance of twelve feet when the bridge was built, or that the defendant reduced the clearance by changing the grade of the street prior

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to 1921, the gist of the argument in its brief is this: The railroad commissioners’ order required that a clearance of twelve feet by established in building the bridge; it is to be presumed that this order was obeyed (22 C.J. 108, note 85); the grade of the street at the time of the 1921 paving was set by the defendant’s engineers; no change in the bridge or street level has been made since; the clearance on May 4, 1941, was but ten feet and ten inches; therefore the defendant reduced the clearance one foot and two inches by the act of its engineers in adopting the raised grade occasioned by various pavings of the street since 1879 in fixing the grade in 1921. Thus the proof of the disputed fact essential to establish this claim, that between 1879 and 1921 by various pavings the level of the street was raised one foot and two inches, reducing the clearance by so much, is made dependent upon the above presumption. It is undisputed that this bridge was built by the railroad pursuant to the order of the railroad commissioners. There is a presumption that public officers have done their duty until the contrary appears. State ex rel. Fitzroy v. Trustees of Firemen’s Relief Fund, 122 Conn. 650, 657, 191 A. 729; Bedard v. Cunneen, 111 Conn. 338, 341, 149 A. 890. But even this presumption does not exist as to a private individual’s compliance with the law. Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250. The railroad, a private individual in the sense in which the term is used in this connection, was the party ordered by the commissioners to build this bridge, and accordingly there is no presumption that it complied with the provision for a twelve-foot clearance. As was remarked by this court in an earlier case: “It would be a credit to human nature if the law could raise a presumption of the performance of all private duty in the same manner that it presumes the performance of official

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duty, but no such presumption at present exists.” New England, Mfg. Co. v. Starin, 60 Conn. 369, 373, 22 A. 953. The presumption claimed cannot avail the plaintiff here and the court’s finding that no act of the city materially changed or decreased the clearance between the street surface and the bridge girder, which is amply warranted by the evidence, cannot be disturbed.

If the city did not decrease the space below the bridge, after it was erected, by changing the grade of the highway, the situation would be one where the only duty upon the city was to take steps to remove a nuisance created by another. Liability would be predicated upon a breach of a governmental duty in the maintenance of a highway, for which no action will lie unless imposed by statute. Dyer v. Danbury, 85 Conn. 128, 131, 81 A. 958; Riccio v. Plainville, 106 Conn. 61, 64, 136 A. 872; Hoffman v. Bristol, 113 Conn. 386, 391, 155 A. 499; Bacon v. Rocky Hill, 126 Conn. 402, 409, 11 A.2d 399.

There is no error.

In this opinion the other judges concurred.