Gray v. Borough of Danbury. Gen. Statutes, p. 323, sec. 28, and p. 324, sec. 30. The 28th section has more particular reference to grade crossings and cases where the location of the highway is changed in order that the railroad may be laid in the most feasible place. The 30th section is the one more particularly relied on. It provides that the railroad company "shall make and maintain such bridges, abutments, tunnels, arches, excavations, embankments and approaches as the convenience and safety of the public travel upon such turnpike, highway or street may require," etc. It seems to be claimed that under this statute the railroad company was bound to maintain the highway under the bridge, at least so far as to prevent the bridge from interfering with public travel. We think this is a strained and unnatural construction of this section. No word in it aptly describes this piece of road, and the whole section falls far short of imposing upon the company any such duty. In this connection it was urged by counsel for the borough that "whatever additional burden of repair the pressure of the bridge might demand, should be assumed by the railroad company, for whose benefit the bridge was constructed. The state of repair in which the roadbed was at the time of the accident in question, would in former times have been ample; if it was inadequate when the accident occurred, it was solely because of the presence of the bridge above it. This is an expense rendered necessary by the presence of the bridge solely." This is plausible, but it is reasoning from false premises. It assumes that it was more expensive to maintain the road at its former grade than to raise it up, whereas the reverse was doubtless true. It also assumes that the inadequacy of the highway was "solely because of the presence of the bridge," whereas the finding clearly shows that the bridge was harmless, and would have remained so if the borough had done its duty properly. It is not to be inferred, however, that the presence of a railroad will in no case impose additional burdens upon towns in maintaining highways. It may well be that their duties in that behalf will be changed or modified, and that Gray v. Borough of Danbury. they will be somewhat restricted in the use of means, as in this case. Such modifications may involve some additional expense which the towns may reasonably be required to bear. It is further claimed that section ten, page 232, of the General Statutes, which makes the party bound to keep a highway in repair liable in damages caused by any defect. therein, makes the company liable under the concluding clause of that section, which is as follows: "And where the injury is caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor." We cannot suppose that the legislature intended to make the company liable in a case like this, where the structure is a bridge over the highway, and the accident clearly resulted from the negligence of the party bound to keep the highway in repair. The counsel for the borough also raise a question of evidence. It is insisted that the testimony, on which it is found that the borough at the time of the erection of the bridge, in view of its liability for the highway, insisted that the bridge should be built according to its wishes, and that it was so done, was inadmissible. We are not satisfied that the statute which requires the record to show that the question was distinctly made on the trial has been complied with. A large number of votes of the borough and of the warden and burgesses were offered in evidence by the plaintiff, and objected to by the borough. Most of these votes were offered for other purposes; and so far as those purposes are concerned, the objection is not pursued. Among those votes was one passed by the warden and burgesses January 19th, 1880, as follows: "Voted, that the board approve of the doings of the N. Y. & N. E. R. R. Co. in building a bridge across West street." That has some tendency to establish the facts objected to; but it does not appear that the objection to the evidence was for that reason; and it cannot be presumed, for, in addition to the fact that it was offered for another purpose, and by the Gray v. Borough of Danbury. plaintiff, the record discloses no attempt by the plaintiff to show that the railroad company was not liable. But aside from this, the facts must have been found mainly on other evidence. What that evidence was does not appear; neither does it appear that it was objected to. There is no error. In this opinion the other judges concurred. APPENDIX. OBITUARY SKETCH OF ANDREW C. LIPPITT.* ANDREW CLARK LIPPITT, son of Christopher and Marcia Gooding (Wilbur) Lippitt, was born in Warwick, Rhode Island, May 21st, 1812, and died in New London, Connecticut, August 8th, 1884. He was married May 3d, 1842, to Lois Emeline, daughter of Amos Cobb, of Norwich, Connecticut, who, with two of three children born of the marriage, survives him. Having completed a preparatory course at the Plainfield Academy, an institution of some note in the early part of the present century, he entered Amherst College in 1833, and graduated in the class of 1837. He studied law in the office of La Fayette S. Foster, of Norwich, was admitted to the bar in June, 1839, and at once began practice at New London, where he continued to reside until the time of his death. The habits of thrift and industry to which he was bred, the indefatigable energy that he brought to bear on every undertaking in which he engaged, his fine personal presence and attractive manners, and his thorough preliminary training, assured his professional success from the start. He at once took front rank among the younger members of the bar of his county, and within a few years was one of its acknowledged leaders. His active practice continued without interruption until a few months prior to his death. Among the chief secrets of his success at the bar were his wonderful industry and persistency. He never failed to thoroughly identify himself with the interests of his client, and every cause committed to his charge received conscientious and faithful attention. He was of a most sanguine temperament, and rarely entered upon the trial of a case, no matter how desperate the chances might be, without an abiding confidence that all obstacles could be surmounted. He never contemplated defeat until it overtook him. An abundant fund of common sense and ability of a practical every-day order brought him a measure of success that lawyers more subtle and profound often fail to achieve. His cases were always thoroughly prepared, and always tried for their full value at every stage from beginning to end. As an advocate he was remarkably effective. He never attempted flights of eloquence, but he had a rare faculty of putting the salient points of a case in plain and forcible Anglo-Saxon, refreshing to court and jury alike. * Prepared at the request of the Reporter by John A. Tibbitts, Esq., of ihe New London County Bar. (595) |