Edward K. Nicholson, of Bridgeport, for | 4. RAILROADS 303(1) — STREET RAILWAY'S appellant. Hugh M. Alcorn, of Hartford, for appellee. PER CURIAM. The issues presented by this case cast upon the plaintiff the burden of proving that the defendant's servant was negligent, and the plaintiff free from contributory negligence. The verdict of the jury imported that it found that he had established by a preponderance of proof the affirmative upon both these issues. The defendant contends that the trial court erred in not setting aside the verdict as being against the evidence in both respects. The issues were of fact, pure and simple, and involved inquiries of a nature to make their determination peculiarly appropriate for the deliberations of a jury. Farrell v. Waterbury Horse R. R. Co., 60 Conn. 239, 257, 21 Atl. 675, 22 Atl. 544. Our examination of the Our examination of the record satisfies us that the oft-stated conditions justifying the intervention of the trial court to set aside the verdict rendered did not exist. There is no error. (94 Conn. 227) ROOT v. CONNECTICUT CO. et al. (Supreme Court of Errors of Connecticut. Dec. 22, 1919.) - 1. ACTION 45(1) PLEADING 52(2) RAILROADS 303(3)-DEFECTS IN CROSSING CAUSING INJURY TO AUTOMOBILE PASSENGER; STATUTORY AND COMMON-LAW LIABILITIES. One injured in a collision between two automobiles caused by a defect in a trunk line highway occasioned by a street railway at a crossing has an election to sue the railway for its failure to perform a governmental duty cast upon it by statute, or for violation of its common-law duty to exercise reasonable care to keep planking in which its tracks were laid in good condition for public travel, and may pursue each remedy in the same complaint and in a single count. 2. RAILROADS 303(3)-STREET RAILWAY's DUTY TO MAINTAIN PLANKING AT HIGHWAY CROSSING. DUTY TO MAINTAIN TRUNK LINE HIGHWAY Gen. St. 1902, § 3837, requiring street railways to keep in repair the highway between their tracks and for two feet outside, and Pub. Acts 1917, c. 66, giving right of action to a party injured against the party bound to keep a defective road or bridge in repair, held not repealed by implication by Pub. Acts 1911, c. 267, § 1, and Pub. Acts 1915, c. 307, as to repair of trunk line highways. 5. RAILROADS A street railway is not liable for negligence in maintaining planking in which its tracks are set at a highway crossing unless the planking is a part of the railway out of which the duty of maintenance arises, or the railway is under duty to maintain the planking in safe condition because of voluntary assumption of the duty. 3. STATUTES 159-REPEAL BY IMPLICATION. Repeal of a statute by implication must appear plainly and definitely, and the statutes from which the appeal arises must be so repugnant as to indicate that the latter was intended as a substitute for the former. Gen. St. 1902, § 3719, relative to repair of structures under or over railroads, is not applicable to a street railway, but refers only to steam railroad companies. 7. INDEMNITY 13(1)-STREET RAILWAY LIA BLE TO STATE OBLIGED TO PAY FOR INJURY FROM DEFECT IN TRUNK LINE HIGHWAY CROSSING; "OTHER PERSON." The term "other person" in Pub. Acts 1915, c. 307, § 3, reserving to the state, obliged to pay for an injury on trunk line highway, a right of action over against the contractor or other person through whose neglect the injury occurred, includes a street railway neglecting its duty to maintain the planking at a crossing in good condition. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Other.] Case Reserved from Superior Court, New Haven County; William S. Case, Judge. Action by Charles A. Root against the Connecticut Company and another. On reservation for the advice of the Supreme Court of Errors. Judgment advised for plaintiff. One of the highways of the trunk line system passing from Wallingford to New Haven and constructed by the highway commissioner at a point about a mile north of New Haven was crossed by a single-track line of the defendant street railway. At the point of crossing the rails were substantially at grade, crossing the highway diagonally and within the highway lines for about 100 feet. The surface of the highway was a bitulithic macadam pavement, except that on each side of the rails and within the highway lines was a row of planks 12 inches wide and imbedded in the macadam pavement. The planks on the outside of the rails were substantially flush with the top of the rail and with the surface of the macadam, while on the inside of the rails the planks were 2 (108 A.) to 3 inches from the rail and 2 to 3 inches below the top of the rail, but flush with the macadam surface between the rails. The planks made a more durable and better pavement to adjoin the rails than macadam. The highway surface between the rails and 2 feet outside the rails, which included these rows of planks, was constructed by the defendant company according to plans of the highway commissioner at the time this highway was constructed and in the belief that the highway commissioner had authority to require it to construct this portion of the highway. On June 23, 1918, one of the outside planks on the northerly side of the northerly rail and in the westerly side of the highway had become rotted and worn so that there was a hole therein 18 inches long shelving to the center of the plank from both sides, leaving a portion of the rail which adjoined the hole exposed, and the hole was substantially 3 inches deep. During the night of this day two automobiles collided at or near this depression, causing injuries to plaintiff. For the purpose of this reservation the defendants agree that the proximate cause of plaintiff's injuries was the hole in the planking, and that the planking was not maintained in proper repair or in a reasonably safe condition for public travel thereon, and by reason thereof the course of one of the automobiles was deflected by its front wheel striking the hole and turning it into the automobile in which the plaintiff was riding as the two automobiles were about to pass one another, and the collision resulted in the plaintiff sustaining injuries. The defendant company did not lay out or construct and does not maintain or operate a railroad operated by steam power. If the plaintiff is entitled to recover, the judgment is to be rendered in his favor for $2,250. The place of injury was upon a trunk line highway, and the cause a defect therein. The duty of keeping such a highway in repair was, by chapter 267 of the Public Acts of 1911, placed upon the state, and so continued at the time of this accident. By chapter 307 of the Public Acts of 1915 the person injured through the neglect of the state to keep such highway in repair is given an action for damages against the highway commissioner, and upon paying the judgment the state is subrogated to the rights of the injured person to recover from the contractor or other person through whose neglect the injury has occurred an amount equal to the judgment it has paid. Hence it was the duty of the state, through the highway commissioner, to have repaired the defective planking, and because of its failure so to do the plaintiff suffered his injuries. The express terms of the statute make the highway commissioner liable for these injuries which have occurred through his neglect to keep the highway in repair and give the state its right of action upon the judgment paid against the person whose neglect caused the accident. Two causes of action were set up in the single count of the substituted complaint against the defendant railway, viz., a liability to the plaintiff for injuries resulting from the defective condition of the planking through violation of its statutory duty, and through violation of its common-law duty to exercise reasonable care to keep this planking in good condition for public travel. The statutory liability "rests upon the failure to perform a governmental duty" which the General Assembly has cast upon the defendant railway. The common-law liability rests upon a different foundation-upon the failure to exercise ordinary care in the conduct of its affairs. [1] The plaintiff had an election which Lawrence L. Lewis and Charles E. Hart, remedy to pursue (Coburn v. Connecticut Co., Jr., both of Waterbury, for plaintiff. William E. Egan, of Hartford, and Frank E. Healy, Atty. Gen., for defendant Highway Com'r. Harrison Hewitt and Harrison T. Sheldon, both of New Haven, for defendant Connecticut Co. WHEELER, J. (after stating the facts as above). This action was originally brought against the defendant railway company, and came to this court upon a reservation, and thereupon was remanded to the superior court, with instruction to cause the highway commissioner to be brought in as a party defendant. This was done, and the case is now before us upon a reservation with an agreed statement of facts together with the claims of law of the parties. The primary question before us is whether the plaintiff is entitled to recover against either or both of these defendants. 84 Conn. 654, 657, 81 Atl. 241), or he could do as he has done, pursue each remedy under the same complaint and in a single count. The substituted complaint and the agreed statement of facts differ. The complaint sets up that the planking was installed by the defendant as a part of its highway crossing, and that it was the duty of the railway to maintain the planking in good condition for public travel. [2] The agreed statement of facts omits these allegations, and merely alleges that the planking was constructed by the railway in the belief that it was required to do this. This with the facts showing the defective condition of the planking at the time of the collision are substantially all of the pertinent facts agreed to from which the negligence of the railway is claimed under the common law. If the agreed statement of facts had set forth facts which showed that the planking was a part of the railway out of which the duty of maintenance would arise, or af The plaintiff's cause of action matured prior to July 1, 1918, and the statutory references herein thus antedate the Revision of 1918. The plaintiff's main reliance is upon two statutes. General Statutes (1902) § 3837, provides that "Every such company [street railway company] shall keep so much of the highway as is included within its tracks, and a space of two feet on the outer side of the outer rails thereof in repair, to the satisfaction of the authorities of the city, town, or borough, which is bound by law to maintain such highway." Chapter 66 of the Public Acts of 1917 provides that "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair." Counsel for the railway place its argument under two main propositions: (1) That the railway owes no duty to keep any portion of the highway in repair; and (2) that it is not liable in damages for an injury caused by a defect in the surface of a trunk line highway. We will take up in this order the principal features of the argument in support of these claims. Section 3837, it is said, refers exclusively to municipal highways, and not to trunk line highways, and that the enactment of the trunk line highway legislation has placed this kind of highway in a class by itself, and not subject to the provisions of section 3837 and chapter 66 of the Public Acts of 1917, and further that it requires the railway to repair this portion of the highway to the satisfaction of the municipal authorities and provides for the kind of pavement they may require and for the keeping of a record of all orders for repairs to be made by the railway, while on the trunk line highway only the highway commissioner can make such repairs, and the conclusion drawn is that, when the word "highway" is used in this section, it refers to municipal, and not to trunk line, To the second point the argument is: The action is brought upon the remedy given by chapter 66 of the Public Acts of 1917, supra, and that the act does not refer to injuries from defects in trunk line highways, and an exclusive remedy for injuries on such highways was given by Public Acts of 1915, c. 307. The remedy is given against the party bound to repair, and the only party responsible for the repair of a trunk line highway is the state. "The entire cost of repairs to trunk line highways shall be paid by the state." Public Acts of 1911, c. 267, § 1. And further the provision in this section casting upon the railroad company the duty of maintenance of all structures over their tracks at any highway crossing refers to a steam railroad, and not to a street railway. We cannot but think this argument more plausible than sound. Section 3837 imposed the duty to repair the portion of the highway that might be within the tracks and two feet outside the rails of the street railway upon it. This duty was cast upon every street railway, and in terms it applied to every highway, not only the then known kind, but the kind that time might disclose. General Statutes 1902, § 2020, as amended by Public Acts of 1917, c. 66, gave to any person injured by a defective road a right of action in damages against the party "bound to keep it in repair." In neither statute was there a limitation as to the kind of road or highway to which the statute referred; and this duty and remedy must still exist unless there has been a repeal of these statutes so far as concern trunk line highways. [3] No claim of an express repeal of these statutory provisions has been made. It is necessary that a repeal by implication be found if the railway's position is to be sustained. Thus must appear plainly and definitely. The statute or statutes from which the repeal by implication arises must be so repugnant to each other as to indicate that the latter statute was intended as a substitute for the former before a repeal by implication can be found. Fair Haven & Westville Ry. Co. v. New Haven, 75 Conn. 446, 53 Atl. 960. [4] The statutes from which the repeal by implication must be found, if at all, are Public Acts of 1911, c. 267, § 1, supra, and Public Acts of 1915, c. 307: "Any person injured in person or property through the neglect or default of the state or any of its employés by means of a defective road or bridge which it is the duty of the state highway commissioner to keep in repair * may bring a civil action to recover damages sustained thereby against the highway commis sioner. 99 As we read these statutes, there is no necessary repugnance between the later and (108 A.) these statutes stand together. The statutory |ing it. The statutory |ing it. Its burden upon the railway repolicy of having railways repair that por-mained as it had remained. tion of the highway occupied by them having been long established, the provisions of the latter statute imposing all the burden of repair of a certain kind of highways upon the state should be construed to relieve the towns of the burden of repair, but should not be construed to repeal section 3837, since there is no necessary repugnance between these statutes, and it will not be presumed that the General Assembly intended to depart from this policy in the absence of clear and certain implication. In the Public Acts of 1863, c. 31, the obligation to keep in repair the highway two feet outside the rails of a horse railroad is first found, and also an action for neglect to repair given the person injured thereby. This obligation and remedy were carried on to the electric railway, the successor to the horse railroad, somewhat broadened, but in its essence the same, down to the time of the enactment of the trunk line legislation. It has been the settled and long-time policy of our state to require street railways to keep in repair this space within and adjoining the rails of their track. The reason for this legislation no doubt arose out of the knowledge that a part of the railway's structures extended beyond its rails and its occupancy of the highway through the overhang of its cars extended somewhat beyond its rails, and that the repair of the highway immediately In the history of this legislation will be found persuasive argument against a repeal by implication of the earlier statutes. A detailed discussion of these and related statutes would be protracted and of little public service, and for this reason we refer to a part of the history, and that briefly. From an early day the town was charged with the duty of repair of all highways, and the ear-adjoining the rails was more burdensome belier improved roads statutes placed the duty cause of the presence of the railway in the of repair of improved roads upon the town. highway. In Public Acts of 1907, c. 264, § 3 (the Good Roads Act), the duty of repair in the case of highways constructed under the act or previously constructed with state aid was committed to the highway commissioner, and the towns were required to reimburse the state for one-quarter of the cost paid out. In the amendment to the Good Roads Act (Public Acts of 1909, c. 135) the repair of state-aided highways was placed on the state, and one-fourth their cost was to be reimbursed the state by the towns through which they passed. Public Acts of 1911, c. 267, substantially reenacted the act of 1909, and further provided that the entire cost of repairs to trunk line highways should be paid by the state. It is quite unlikely that the General Assembly intended to change this established policy, and, if it had so intended, it is exceedingly unlikely that it would have left to the implication of the statute a change of so radical a nature. And it is even more unlikely that a change of policy would have been made as to trunk line highways, while all other highways were still left under the ancient policy. The relief of street railways of this obligation to repair when operating across, upon, or beside a trunk line highway would impose a very considerable burden upon the state and one which it would not have assumed without adequate reason. So far as we can see, no good reason exists, certainly none has been suggested by counsel, for the assumption by the state of this very considerable burden and for the abandonment of a policy existing toward street railways from their inception. While the state assumed the duty of repair of state aid roads in large part as early as 1907, no attempt has been made on this ground to secure judicial relief to the street railways from the duty of keeping in repair a portion of the highway as required by section 3837. And, aside from the present case, only one other instance has been found, and that in January, 1919, where a street railway has sought to avoid the obligation of section 3837, since the trunk line legislation as to railways on trunk line highways, and this is significant of the general interpretation of these statutes. The reason was the larger purposes served by these roads, intertown and interurban and interstate as well, and the unfairness of making a locality pay for a benefit to the public of the entire state or of a number of states. One accomplishment of the trunk line legislation was the substitution of the highway commissioner in place of the town, and, since the town had been under the duty of making these repairs, it was necessary to clearly state that the entire cost of the repairs to trunk line highways should be paid by the state. The clause accomplishing this appears in the middle of section 1 of this act, the section being devoted to state aid roads, to the cost of which the town contributed, so that in order to make it clear that this did not refer to trunk Various acts have been passed relieving line highways it was stated that the entire the town of various forms of liability, but cost of repairs was to be paid by the state. none of these have relieved the street railThere was no thought of affecting section way. Throughout all the trunk line legisla3837, and so there was no need of amend- tion the intention to preserve the liability of the street railway for repairs and mainte- | plaintiff, and others were disallowed, and every nance of the part of the highway occupied by matter in dispute was settled save an item of it clearly appears. interest amounting to something over $4, an appeal was not justified. The state was required to assume the duty formerly resting on the towns by express terms; we do not think it has been required by implication to assume the duty that had rested on street railways for over 50 years. The trunk line legislation transferred to the highway commissioner the control over street railways in highways which formerly belonged to the town, but it did not relieve the railway of its duty of repair of the highway within which it operated. [5] The substitution of the highway commissioner for the town in matters relating to these highways cannot by itself be held to repeal the obligation of the railway to repair this portion of the highway. Hartford v. Hartford Street Ry. Co., 75 Conn. 475, 53 Atl. 1010. [6] We agree with the defendant railway that General Statutes 1902, § 3719, is not applicable to a street railway, and what it says of the duty of the railroad companies must be held to refer to the steam railroad companies, and we therefore hold that the plaintiff cannot support his action under this statute. This seems so clear from the history of the act and its contents and context that we merely state our view. [7] Public Acts of 1915, c. 307, gives a right of action against the highway commissioner "for injuries sustained on state highways." Section 3 of this act reserves to the state, having been obliged to pay a judgment rendered under the provisions of this act, a right of action over against the contractor or other person "through whose neglect or default any such injury may have occurred" to recover an amount equal to the judgment so paid. The term "other person" was, as we think, intended to include street railways. And the state may under this act recover what it may have paid for injuries through defects within this two-foot space. The reservation of this right shows that the railway has not been relieved of its duty to make these repairs under section 3837. The superior court is instructed to render judgment against each of the defendants for $2,250. No costs will be taxed in this court in favor of either party. The other Judges concurred. (49 Conn. 256) AUGAT 7. TETMEYER. Appeal from Court of Common Pleas, Fairfield County; John R. Booth, Judge. Action on note note by Christopher Augat against Johanna Tetmeyer. Judgment for plaintiff for $152.83, and defendant appeals. No error. Albert McC. Mathewson, of New Haven, for appellant. Joseph G. Shapiro and Charles H. Shapiro, both of Bridgeport, for appellee. PER CURIAM. Certain items of the defendant's counterclaim were allowed in reduction of the amount claimed by the plaintiff; others were disallowed. The finding conclusively settled every matter in dispute, save an item of interest amounting to something over $4, which it is claimed the court erroneously allowed. This did not justify an appeal, and our disposition of the case is manifestly controlled by Neville v. Frary, 88 Conn. 50, 89 Atl. 882, and the earlier cases there referred to. 1. HUSBAND AND WIFE 4-HUSBAND'S LIABILITY FOR ARTICLES FOR THE WIFE WHILE ABANDONED BY HER HUSBAND. The last clause (here quoted) of Gen. St. 1918, § 5275, providing that both husband and by either shall have gone to the support of wife shall be liable when any article purchased the family, or for the joint benefit of both, or for the reasonable apparel of the wife, or for her reasonable support, "while abandoned by her husband," refers only to the clause immediately preceding, and does not govern all the preceding clauses. 2. HUSBAND AND WIFE 235(4)—FINDING THAT PURCHASES BY WIFE WERE FOR SUPPORT OF HERSELF AND CHILDREN RENDERING HUSBAND LIABLE. In a suit against a husband under Gen. St. 1918, § 5275, by a merchant who sold to the wife, finding that the purchases by the wife were necessary for the support of herself and minor children, involved a finding that the purchases had in fact gone to the support of the (Supreme Court of Errors of Connecticut. Dec. family, to establish the husband's liability with22, 1919.) APPEAL AND ERROR 1171(4)—ERRONEOUS ALLOWANCE OF SMALL ITEM OF INTEREST NOT REVERSIBLE ERROR. Where certain items of a counterclaim were allowed in reduction of an amount claimed by in the statute. 3. HUSBAND AND WIFE 19(9)—HUSBAND LIABLE FOR ARTICLES PURCHASED BY WIFE FOR FAMILY SUPPORT. Under Gen. St. 1918, § 5275, a merchant could recover from a husband for articles |