Under a complaint alleging the neglect of a municipality to perform a duty which it owed to the plaintiff as a traveler upon one of its highways, no recovery can be had if it appears that at the time of the injury the plaintiff had voluntarily departed from the traveled way for a purpose unconnected with his passage over the highway. A cause of action must be alleged as well as proved in order to justify a recovery upon it.
PRENTICE, J.
The delict charged against the defendant as the basis of recovery upon the one count pursued, was its failure to perform the duty which it owed to him as a traveler upon one of its highways. Bartram v. Sharon, 71 Conn. 686, 694, 43 A. 143; Knapp Cowles Mfg. Co. v. New York, N. H. H.R. Co., 76 Conn. 311, 316, 56 A. 512. At the time of the receipt of his injury he was not such a traveler. He had voluntarily departed from the traveled way, and turned aside from his journey for a purpose in no way connected with his passage over the highway. The fact that he had but shortly before been using the street for travel, and intended to soon resume his passage over it, made him no more a traveler thereon than he would have been had his digression for an independent purpose been of longer duration and intended to be longer continued. This fact was conclusive against his right to recover substantial damages.
It is urged that the defendant may incur a common-law liability arising from some wrongful act, and that facts justifying a judgment for this cause appear in the evidence. Such a cause of action, however, was neither set up nor admitted by the default. Recovery, therefore, could not be had upon it. Whiting v. Koepke, 71 Conn. 77, 40 A. 1053.