Connecticut. Supreme Court of Errors.

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out the city, arising from the same or similar causes, but the



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416 NEW LONDON AND WINDHAM.

Congdon v. City of Norwich.

streets and sidewalks were not uniformly covered with ice,
as is sometimes the case during and after a cold rain.
^ Upon these facts the defendants claimed, and requested the
court to rule, that there was no defect in the highway so as to
render the defendants liable ; but the court held otherwise,
and found that upon these facts the highway was defective
within the meaning of the statute.

At the time of the accident the plaintiff was on his way
home from a religious meeting by the most direct and usual
route. He was familiar with the locality, and knew the con-
dition of the sidewalk, and was using all the care that could
reasonably be required of him while walking over the ice.
He miglit however have gone around the ice by passing over
the carriage way of the street and thereby avoided the dan-
ger to some extent.

If, as a matter of law, it was negligence in the plaintiff,
under the circumstances, to attempt to pass over the ice in
question, then the court found that he did not exercise due
care, and that his own negligence contributed to the injury.
But if the law would not impute negligence to him upon
these facts, then it was found, as a fact, that his own negli-
gence did not contribute to the happening of the injury.

Upon the facts thus found the court found the issue for the
plaintiff and assessed the damages at $2,000. The defend-
ants brought the record before this court by a motion in error,
assigning as error that the court should have held, as matter
of law, that the highway was not defective within the mean-
ing of the statute, and that the law upon the facts found im-
ported negligence in the plaintiff.

HaUey and Pratt j for the plaintiffs in error.

1. We contend that ice formed upon the sidewalk in
the manner described in the finding of the court, does not
cause the highway to become defective within the meaning
of the statute. Stanton v. City of Springfield, 12 Allen, 666 ;
Luther v. City of Worcester , 97 Mass., 268 ; Sutchins v. City
of Boston, id., 272 ; Raymond v. City of Lowell, 6 Cush., 524,
585 ; Cdkins v. City of Hartford, 83 Conn., 57. There is



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OCTOBER TERM, 1870. 417

Congdon r. City of Norwich.

some apparent conflict in a part of these decisions, but the
rule seems to be finally settled in two cases which have been
reported since this was tried in the court below. The deci-
sive point in these two cases is, that in order to make a town
or ^ity.liable for a defect caused by ice or snow, there must
be such a formation that it is an obstacle to travel. If there
is nothing causing the injuiy but the slipperiness of the ice,
then the city is not liable. This is all that appears in the
case at bar, and therefore the judgment should be reversed.
Stone V. Huhbardston, 100 Mass., 49; OUbert v. City of Roa>
huryy id., 185.

2. Even if the sidewalk was defective, the plaintiff in
passing over it, having full knowledge of its condition, " vol-
untarily assumed the risk and all the consequences of his
indiscretion," and was guilty of such negligence as to prevent
his recovery. Fox v. Tenon of CHa%ionbvry^ 29 Conn., 204 ;
Park V. O'Brien, 23 id., 839 ; Neal v. GUleUy id., 487.

8. The facts found by the court upon which judgment was
rendered are insufficient to warrant the judgment. It is not
found that the walk was defective, nor that the plaintiff was
in the exercise of due care. Upon this finding if the case
had been reserved it must have been sent back for a further
finding. If the finding is insufficient to enable this court to
determine what judgment should be rendered, it is insufficient
to sustain the judgment that has been rendered.

Wait and Eooey, for the defendant in error.

1. Whether there was negligence in the plaintiff, was a
question not of law, but of fact. Been v. Smsatonic R. R.
Co., 19 Conn., 666 ; Park v. O'Brien, 23 id., 889 ; Williams
r. ainton, 28 id.^ 266.

2. The fact that the plaintiff was familiar with the local-
ity uid knew the condition of the sidewalk where he fell and
sustained the injury complained of, and that he might have
gone around the ice by passing over the carriage way of the
street and thereby avoided the danger to some extent, was
not conclusive evidence of negligence on his part in attempt-
ing to pass over the ice. Whittaker v. We$t Bot/hton, 97

Vol, XXXVII. — 68



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418 NEW LONDON AND WINDHAM.

Congdon v. City of Norwich.

Mass., 273 ; Beed v. Norihfieldj 13 Pick., 94 ; Bigehw v. Rut^
Und,' 4 Cush., 247 ; Smith v. Cily of Lowell, 6 Allen, 39 ;
Snow V. Housatonic Jt. Jt. Co., 8 id., 441 ; Meesd v. Lynn ^
Boston B. R. Co., id., 234 ; Froit y. Waltham, 12 id., 85 ;
Jacobs V. Bangor, 16 Maine, 187.

8. The ice and snow upon which the plaintiff slipped,
fell and sustained the injury complained of, constituted a de-
fect in the sidewalk within the meaning of the statute. Gen.
Statutes, tit. 31, sec. 6 ; Calkins v. City of Hartford, 33 Conn.,
67 ; Stone v. HuhbardUon, 100 Mass., 49 ; Lather v. City of
Worcester, 97 id., 268 ; Hutchins v. City of Boston, id., 272 ;
Hall V. City of Lowell, 10 Cush., 260 ; Shea v. City of Lowell,
8 Allen, 136 ; Shearm. & Redf. on Negligence, § 395.

4. The defendants were chargeable with negligence in
suffering the ice to remain in the condition it was at the time
of the injury, for the period stated in the finding. Calkins v.
City of HaHford, 83 Conn., 57.

6. There was no negligence on the part of the plaintiff
which contributed to produce the iiyury.

Sbymoub, J. The question in this case is, whether the
plaintiff suffered the ii\jury complained of by means of a de-
fective road. The issue was closed to the court and is found
in favor of the plaintiff. The facts are stated in detail on
which the judgment is based. The defendants insist that the
facts thus specially found do not in law warrant the conclusion
that the road was defective. In general the question whether
a road is or is not defective must be one of fact and not of
law. It depends on a great variety of circumstances, which
it is impracticable to group together into a l^gal proposition.
A better and safer condition of roads may reasonably be ex-
pected and required in the summer than in spring and winter,
in populous cities than in unfrequented districts. Much may
depend upon the means at command, upon general usage,
upon the question whether the defect is the result of a sudden
accident or has been long neglected. So many circumstances
are involved in the enquiry that coiuts have usually treated
it as one of fact to be submitted to a jury ; not however but



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OCTOBER TERM, 1870. 419

Congdon v. City of Norwich.

that questions of law may arise as to alleged defects. Thus,
in this ease, tlie judge having found that tliere was no struct-
ural defect where the injury happened, and that whatever
defect existed was in consequence of the accumulation of ice
and snow upon the sidewalk, the court may properly be called
on to decide as matters of law, whether, first, a sidewalk
may be a part of the road which a city is bound to keep in
repair, and, second, whether any duty devolves upon those
who are bound to keep roads in repair in respect to snow and
ice, and whether in point of law a road may be defective,
without structural defects, by means of accmnulations of snow
and ice. It is conceded that in this rigorous climate the duty
of cities and towns in respect to snow and ice is and must be
very limited. Wlien an ice storm covers the entire surface
of the earth with ice the public authorities cannot be expected
to scatter sand and ashes upon all the places of public travel
within their limits ; and when snow storms cover the ground
with irregular heaps, liable to constant change by the force
of changing winds, it cannot be expected that the public au-
thorities will make paths as level and smooth and safe as
summer roads are reasonably required to be ; but it has
become familiar law in Connecticut, and not controverted by
counsel in this case, that some duty in regard to snow and
ice devolves upon cities and towns. Accumulations of snow
and ice may produce such a condition of the road as to cause
it to be dangerous and defective, and in each particular case
of alleged defect from such cause the question will depend
upon an inquiry of fact, whether under all the circmnstances
of the case the road was in a reasonably safe condition, and
whether those who were bound to keep the road in i^epair are
justly chargeable with negligence and want of reasonable
care in relation to it. As the country advances in wealth
and resources and means of improvement many defects which
are now properly tolerated may become actionable. A road
which now would properly be regarded as reasonably safe
might cease to be so regarded if in consequence of increased
facilities and means and skill it could at trifling expense be
made much safer. If therefore we should undertake to give



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420 NEW LONDON AND WINDHAM.

Congdon w. City of Norwich.

a legal definition to a defect in a highway, such definition
however just and appropriate to-day, might by change of cir-
cumstances become inappropriate by the lapse of a few years.
Certain matters are necessarily left as matters of fact in each
particular case without' exact legal definition, as fraud, negli-
gence, and the like ; and what are defects in highways must
in general be so left. Hall v. City of LaweUy 10 Cush. R., 260.
In the case under consideration we cannot pronounce as
matter of law that the facts found do not warrant the conclu-
sion to which the court below came. The place wliere the
injury happened was quite steep in Main street ; the peculiar
construction of the ground and sidewalk caused an irregular
and uneven accumulation of ice and snow ; the place had
been more or less slippery and dangerous for two weeks.
Here is evidence relevant to the case tending to show a de-
fective condition of the sidewalk, and it might in law justify
the finding of the issue in favor of the plaintiff. We have
no cognizance of the question as a question of fact ; the case
is not before us for a verdict against evidence, but for conclu-
sions alleged to be unwarranted by law.

The defendant also claims that as matter of law it was
negligence in the plaintiff under the circumstances found to
attempt to pass over the ice in question. It is said, in the
first place, that the plaintiff knew the condition of the side-
walk. Such knowledge is important evidence tending to show
the plaintiff's negligence, but by no means conclusive. This
\ precise point was so decided in Beed v. Nbrthfidd, 13 Pick.,
94. If we should adopt the rule that a party cannot recover
for injuries arising from defective roads and bridges merely
because he knew of the defect, a town might allow a bridge to
remain in a dangerous condition so long that its unsafe con-
dition became known to all persons, and then claim exemption
from liability by reason of the grossness of its own neglect.
So too the fact, which is urged in the second place, that the
plaintiff might to some extent have avoided the danger by
leaving the sidewalk and taking the carriage path, is relevant
evidence on the question whether he acted with ordinary care,
but not conclusive. It was decided in the case of WiUiami



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OCTOBER TERM, 1870. 421



State V. Stanton.



V. OKntany 28 Conn., 266, in a case similar to the present,
that the question of the plaintiff's negligence was one of
fact, and it was evidently so regarded by tlie judge who tried
this cause at the circuit.
We think there is no error in tlie judgment complained of.

In this opinion the other judges concurred ; except Foster,
J., who dissented, and Carpenter, J., who having tried the
case in the court below did not sit.



^ M t»



State vs. Henry C. Stanton.

A eomplaint charged the defendant In one count with keeping for'sale intoxi-
cating liqnors adulterated with poisonous ingredients, and in another with
keeping for sale a spirituous liquor compounded in imitation of Port wine and
adulterated with poisonous ingredients, in violation of the 46th section of the
statute concerning spirituous liquors (Gen. 8tat,tit. 63.) Held — 1. That
the testimony of a witness that he had asked the defendant to give up the sale
of liquor and that he had refused to do so, was admissible as going to show
that the liquors kept hy the defendant were kept for sale. 2. That eridence
that men and boys had frequently been seen going into the defendant's store
and coming out intoxicated, also that there were decanters upon the shelves
of the store, also that persons had been seen standing at the counter as if
drinking, was in each case admissible as tending to prove that liquors were
kept and sold there.

The defendant requested the court to charge the jury that unless they found
that he kept a pure intoxicating liquor which had been adulterated with poi-
sonous ingredients he must be acquitted. Held not entitled to consideration,
because it asked for the entire acquittal of the defendant upon a fedlure to sus-
tain the first count merely.

The section referred to was intended to reach spirituous liquors containing dele-
terious and poisonous ingredients and prevent the'sale of them, whether those
ingredients were added to pure liquor, or were used in compounding an imita-
tion, or were added to the imitation.

^ is not necessary to a conviction that it should be proved that the defiendant
knew, that the liquors were adulterated. Where a person is knowingly en-
gaged in a criminal act and commits a greater offense than the one intended^
proof of an intent to commit the greater ofiense is not essential to a conviction
f»r that offense ; and this rule appUes not merely to crimes which are mala in
ie, but to those which are only mala prokibUa*



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422 NEW LONDON AND WINDHAM.

State v. Stanton.

Grandjubor's complaint to a justice of the peace, for keep-
ing for sale intoxicating and adulterated liquors in violation
of the act concerning spirituous liquors, (Gen. Stat., tit. 63,
sec. 46 ;) appealed by the defendant to the Superior Court
in New London County, and tried to the jury upon the plea
of not guilty before Parh^ J. The complaint was as follows :

" That on the 7th day of February, 1870, at said town of
Stonington, Henry C. Stanton, of said Stonington, did keep
for sale intoxicating liquors, which were at said time adulter-
ated with deleterious ingredients, against the peace, and con-
trary to the form of tlxe statute in such case provided.

*'And said grandjuror further complains that the said Henry
C. Stanton, on the 7tli day of February, 1870, at said town
of Stonington, did keep other spirituous liquor for sale, to
wit, a quantity of spirituous liquor made and compounded
in imitation of the liquor known as Port wine, and which
was at said time adulterated with poisonous ingredients,
against the peace, and contrary to the form of the statute in
such case made and provided."

The jury found the defendant guilty and he moved for a
new trial. The points made in tlie motion are sufficiently
stated in the opinion.

Wait and Pratt^ in support of the motion.

Chadtaick, State Attorney, contra.

Butler, C. J. Tlie points made in this case will be con-
sidered in their order on the record.

1. There was no error in the admission of the. testimony
of Charles T. Stanton, that he had called on the defendant
and asked him to give up the sale of liquor and that he had
refused to do so. His testimony tended to show an admis-
sion of the defendant that he kept liquors for sale in his
establishment. Adulterated liquors were found there as part
of the stock. The two facts in connection were proper evi-
dence for the jury to receive and weigh, in determining the
question whether the adulterated liquors were or were not
kept there for sale.



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OCTOBER TERM, 1870. 428

State V. Stanton.

2. The testimony of the witnesses to the effect that men
and boys, and a great many, had frequently been seen going
into the defendant's store and coming out much intoxicated,
and also that there were decanters on the shelves, and that
people had been noticed standmg at the counter as if drink*
ing, was also admissible as tending to prove that liquors were
kept and sold there. That was one of the facts which it was
proper and competent for the state to prove by any circum-
stances fi'om which an inference of the fact could be drawn.
Tlie circumstances which the state oflFered to prove were such
as ordinarily and notoriously indicate the fact sought to be
proven. It cannot with truth be said tliat they did not tend
to prove it.

3. Tlie defendant requested the court to charge in sub-
stance, that unless the juiy found that the defendant kept a
pui'e, intoxicating liquor which had been adulterated with
deleterious ingredients, the defendant must be acquitted. This
request was objectionable because it asked the court to charge
the jury that the defendant must b^ acquitted if he was not
found guilty of the oflFence charged in the first count of the
information. The information contained two counts for two
difiTerent offences, and as the defendant's counsel, in substance,
asked the court to charge thtft the defendant was entitled to
an acquittal if the offence charged in the first count was not
sustained, the request asked too much and was therefore im-
proper. The court would have been justified in disregarding
it entirely. But the court did charge in substantial compli-
ance with the request, and the prisoner was acquitted on the
first count. On this point the prisoner has no ground for com-
plaint.

4. The prisoner's counsel fiirther requested the court to
charge the jury, that if they found the liquor seized and
called Port wine to be a combination of ingredients an imi-
tation of that liquor, and that after the imitation was com-
pounded nothing further was added to adulterate the com-
pound, the prisoner must be acquitted. The court did not so
charge, but did charge that if the liquor was a factitious, in-
toxicating compound, made in imitation of the liquor speci-
fied, and contained an admixture of ingredients which were



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424 NEW LONDON AND WINDHAM.

deleterious or poisonous, it was within the description of tiie
second branch of the statute. The court gave a correct con-
struction to the statute. The legislature intended to reach
spirituous liquors composed of deleterious and poisonous in-
gredients, and prevent the sale of tiiem, whether those ingre-
dients were added to pure liquor or were used in compounding
an imitation, or were added to the imitation. The language
of the statute is sufficiently clear and comprehensive to em-
brace them all. There is no error in tiie disposition made
of that request.

6. The defendant further asked the court to charge tiiat
it was not sufficient to prove that liquors were kept for sale,
but that the jury must find that the identical liquors which the
state claimed to have been kept for sale, were in fact so kept.
The court did charge in conformity vrith that request.

6. The defendant still further reqtiested the court to in-
struct the jury that the offence charged involved a criminal
intent, and iliat unless the prisoner knew that the liquors
were adulterated there could be no such intent and he could
not be convicted. The court charged that in general a crim-
inal intent was the essence of crime, and where knowledge
was essential to the criminal intent there knowledge must be
proved. But it was not always essential. Where a* man
was knowingly engaged in a criminal act, and unintentionally
committed a greater ofibnce than the one intended, proof of
an intent was not essential to a conviction for tJie latter crime.
We perpeive no error in this part of the charge. The defend-
ant daims that the proposition of tlie court, ttiough correct
when applied to crimes which are mala in «e, is not correct
when applied to crimes which are mala prohibita. We do
not recognize the distinction as law. The cases cited by iiie
defendant's counsel are all cases where the prisoner was
engaged in doing a lawful act and tiie offence was ccnnmitted
through carelessness.
^ A new trial is not advised.

In tills opinion the other judges concurred ; except Park,
J., who having tried the case in the court below did not sit



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OCTOBER TERM, 1870. 426



State V. Banows's Liquon.



State vi. Bubbows's Liquobs.

The proceeding: under the 22^ section of the statute relating to spiritnoos liqnors
(Gen. Stat., tit. 63,^ for the seizure and condemnation of liqnors kept for sate
in violation of the act, is a proceeding in rem, and chaiges no personal ofienoe
against the owner or keeper.

if the person named in the complaint as the owner or keeper of the liquors, or
anj other person claiming an interest, appear before the justice to show cause
why the liquors should not be forfeited, the persons bo appearing become sey-
endly parties defendant, (nnlets diUmiiig a joint interest,) and u« treated as
such in all the subsequent proceedings, and each party defendant has a sepa-
rate right of appeal.

Where in such a proceeding several parties appear and ftre entered as defendants
before the justice, and one of the defendants appeals to the Superior Court
from the judgment of forfeiture by the justice and another defendant does not
appeal, the defendant not appealing has no right to s^pear and make defense
in the Superior Court.

C!oB[PLATNT under the 22d section of the act relating to
spirituous liquors, made to a justice of the peace bj three citi-
zens pf the town of Groton in New London County, charging
that the liqnors were kept hy one S. W. Burrows for the pur-
pose of selling them in vioIatioA of the act. A warrant was
issued by the justice for the seizure of the liquors, and
public notice given as required by the statute, and at the
time of the hearing upon the return of the warrant Burrows
appeared and claimed an interest in the liquors and defended
the case. The case was adjourned, and at the adjourned
hearing one John Mkinton appeared and claimed to own the
liquors, and was entered as a party defendant in the cause.
After hearing the parties the justice found that the liquors
wwe kept by Burrows for the purpose of being sold in viola-
tion of the act, and adjudged the same forfeited to the town
of Groton, and that costs should be paid by Burrows and exe-
cution be issued therefor. From this judgment Elkinton
appealed to the Si^rior Court, where the case was tried to
the jury, who returned a verdict that the liquors when seized
were kept by Burrows for the purpose of being sold in viola-
tion of the act.

Before the case was tried to the jury Burrows claimed the
light to appear and file his plea as a party defendant. But

Vol. XXXVII. — 54



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426 NEW LONDON AND WINDHAM.



State p, BarrowB's Liqaore.



the court (^Park, tT".,) refused to allow him to file a plea or
appear, and after final judgment upon the verdict Burrows
filed a motion in error, assigning as error the refusal of the
court to allow him to appear and file a plea as defendant

Wait and Prattj with whom was Lippitt^ for the plaintiff
in error.

Hahey and Brandegee^ with whom was Clifty for the State.

Butler, C. J. The court was clearly right in rejecting
the plea of Burrows. He had no standing in the Superior
Court.

The proceeding is special, statutory, and in rem^ and every
step is specifically prescribed. The warrant is framed and
issued to search for and seize the Uquors, and charges no
personal offence against the owner or keeper, and does not
prescribe his arrest or summon him to answer.

When the liquors are seized and taken into the custody of
the law, the justice who issued the warrant is required to
summon the party named in the complaint as owner or
keeper, and all other persons who may have an interest in
the liquors, by written notice, served upon the person named
in the complaint as owner or keeper, and posted on the public
sign-post in the town, to appear at a specified time and place
to show cause why the liquor should not be forfeited. If the
person named, or any other person claiming an interest in
the liquor, appear to show such cause, they become severally ^
parties defendant, (unless they have a joint interest,) and



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