Whether a municipality is negligent or not in permitting a defect in a sidewalk which, while not glaring or pronounced is something more than a trifling inequality in its surface, to remain for years in that condition, is a question of fact for the jury under all the surrounding circumstances. While a municipality is bound to anticipate and provide for all defects and obstructions in a highway which may reasonably be expected to arise in the performance of work by a licensee for his own private benefit, it is not an insurer of the safety of travelers on its highways, and therefore is not bound at its peril to provide in advance against unnecessary and unexpected dangers such as may be created by the negligence of its licensee; its duty is only to use reasonable care in ascertaining such neglect and in averting its harmful consequences. The action of the trial court in setting aside a verdict, although placed upon the wrong ground, will not be disturbed by this court on appeal, if it appears from the appellee's exceptions to the charge that the verdict was based upon an erroneous instruction.
BEACH, J.
Whether the city was negligent in permitting a defect of the size and character above described to remain for an indefinite time at the place where it was located, was a question for the jury to determine in view of all the surrounding conditions.
The plaintiff's story was one which the jury might reasonably believe, and the alleged defect was more than a negligible inequality of surface. Its location and dimensions were definitely ascertained, so that the jury could intelligently pass upon the question whether under all the circumstances of location and travel it was a dangerous defect either in its normal condition or when concealed by loose dirt. So far as these issues of fact are concerned, there was no reason for setting aside the verdict. Nevertheless the court might properly have set it aside on an entirely different ground, because it was based upon a misdirection in charging the jury as set forth in the statement of facts.
When a municipal corporation, charged with the duty of maintaining its highways in reasonably safe condition for travel, grants a permit for specified work to be done within the limits of a highway for the private benefit of the licensee, it is, of course, notified in advance of all defects and obstructions in the highway which may reasonably be expected to arise in the performance of that particular work at the given time and place, and in the exercise of reasonable care it is bound to anticipate and provide for all such defects and obstructions. Boucher v. New Haven, 40 Conn. 456; Cummings v. Hartford, 70 Conn. 115, 123, 38 A. 916.
Since the duty of exercising reasonable care rests continuously on the municipality, it must also use reasonable care to protect travelers against the negligence of its licensees by a reasonable supervision and control of the work. Carstesen v. Stratford, 67 Conn. 428, 434, 35 A. 276. But it is not an insurer of the safety of travelers on the highway, and therefore it is not bound at its peril to provide in advance against unnecessary and unexpected dangers such as may be created in the highway by the negligence of its licensees. In such cases the rule is, not that the municipality is liable for the negligence of the licensee, but that it is bound to use reasonable care in ascertaining the neglect and averting its harmful consequences; and that in the absence of actual notice of a defect due solely to the negligence of the licensee, it is not liable unless it has failed to use reasonable care in discovering the existence of the defect. See 4 Dillon on Municipal Corporations (5th Ed.) § 1723, as modified by Boucher v. New Haven, 40 Conn. 456.
The defendant's bill of exceptions to that part of the charge quoted in the statement of facts is sustained, and the case must therefore stand for a new trial.