HYDE v. COX

One who was injured as the result of a defective condition in a highway created by the Highway Commissioner and a contractor, and sued both such parties, had but one cause of action. That single cause of action should have been stated in one count and alternative relief specifically claimed. The action was not the less one for a defective highway because it was also alleged that the character of the act complained of was such as to constitute a nuisance.

MUNGER, J.

Paragraphs 2 and 3 of the demurrer must be overruled. Concededly the Highway Commissioner is liable only under the statute when an injury is alleged to have occurred from a defect in a highway which has been caused by wrongful act on his part. The first count clearly alleges a defect in the highway caused by the Highway Commissioner. The defect has been caused by a failure to take steps sufficient to remedy a dangerous condition. Among other things alleged is the want of adequate lighting. The action is not the less one for a defective highway because it is also alleged that the character of the act was such as to constitute a nuisance. Nor can the first count be fairly construed to be one against the Highway Commissioner for negligence. It is clear that the fair construction of the pleading is one which alleges an action for a defective highway.