The plaintiff, in her complaint, sets up as the defendant's only delict its negligent failure to keep the sidewalk of one of its highways in a reasonably safe condition for public travel. It is claimed before us that upon the facts shown she was entitled to recover, not only by reason of such a failure, but upon the ground of a violation by the defendant of a duty *Page 693 not governmental but resting upon a contractual obligation, in connection with the construction and maintenance of sewers, assumed by it by virtue of the acceptance of its charter. A sufficient answer to this claim is to be found in the fact that the complaint contains no suggestion of such a cause of action. Beyond this, if the city had assumed the contractual duty contended for, nothing of importance to the present case would, under the facts here, be added to the situation presented. The rule of duty and measure of liability in such case do not differ from those which the statute attaches to the performance of the governmental duty of caring for highways, to wit, that of using reasonable care. Jones v. New Haven, 34 Conn. 1, 14;Dyer v. Danbury, 85 Conn. 128, 131, 81 A. 958. If, in the present case, there was a lack of such care, contributing to the plaintiff's injuries, it found its expression in an unsafe highway. It was as a traveler thereon that she was injured, and her injures were occasioned by the condition of the highway, and by nothing else. If this condition was one which resulted from the defendant's negligence, and thus justified any action at all, it was one which would justify an action under the statute. General Statutes, § 2020. We may therefore confine ourselves to a consideration of the question of the defendant's liability as for a defective highway.
It is apparent from a reading of the record that the court below applied the true rule of duty, with its incidents of supervision and inspection. In measuring the defendant's conduct in the premises by the standard thus rightfully set up, the court was acting upon a matter of fact; and its conclusion that reasonable care was exercised was one of fact. Farrell v. WaterburyHorse R. Co., 60 Conn. 239, 250, 21 A. 675, 22 id. 544. The evidence upon which this conclusion was reached is not before us; the subordinate facts found by *Page 694 the court are. An examination of them fails to disclose that they are inconsistent with the ultimate conclusion reached, that the defendant was free from negligence.
There is no error.
In this opinion the other judges concurred.