Section 3675 of the General Statutes, 1930, is a survival in part of the statute of 1849 mentioned in Middletown v. New York, N. H. H.R. Co., 62 Conn. 492, 494, 27 A. 119. It first appears in a form resembling the present statute as 7 of Chapter 220 of the Public Acts of 1889. This provided that the railroad company should maintain and keep in repair the structure but made it the duty of the municipality to repair the surface of the highway, including the planking or other surface material upon the structure. By Chapter 244 of the Public Acts of 1893 this was changed so as to require the company to repair the surface of the highway as well as the structure, but made it the duty of the municipality to notify the company in writing of any defect therein. This latter requirement continued (3719, General Statutes, 1902, 1918) until, by Chapter 186 of the Public Acts of 1923, there was a return to the municipality of the duty to maintain the roadway. However, in 1925 (Public Acts, Chapter 21) the statute reverted in substance to 3719 of the General Statutes of 1918, except that the requirement of notice to the company by the municipality was omitted, and the statute has since continued substantially the same.
Chapter 140 of the Public Acts of 1869 provided that no town should be liable for injury received on any highway by reason of any structure placed therein by any railroad corporation by authority of law but that damages therefor might be recovered in a suit against the company. This was embodied in 10 of Chapter 7, Title 16, General Statutes, 1875, page 232, which also contained the general provisions for recovery "from the party bound to keep [a road or bridge] in repair," now in 1420 of the General Statutes, but provided only for notice to a selectman of a town or the clerk of a city or borough. The additional *Page 568 provision for notice to the clerk of a corporation was inserted by Chapter 105 of the Public Acts of 1883, which also provided that "when 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," and this is still in 1420 of the General Statutes, 1930.
Therefore may it not reasonably be said, as it was in Shalley v. Danbury B. Horse Ry. Co., 64 Conn. 381,386, 30 A. 135, that the "burden and liability in respect to a limited portion of the highways" thus laid by statute upon railroads are similar to those imposed by statute upon municipalities, also that like notice should be a prerequisite to action against them, and that the Legislature so intended. See, also, Lavigne v. New Haven, 75 Conn. 693, 700, 55 A. 569; Crocker v. Hartford, 66 Conn. 387, 390, 34 A. 98. The legislative history of the statutes shows that there has been some vacillation, but it is plain that the intent and effect was to transfer to railroads, as to highway bridges over their tracks, the statutory duty and liability which primarily had been upon the municipalities, and I regard it a reasonable view that the Legislature contemplated that notice be given the railroad, as to defects for which it was liable, like that to be given to municipalities liable as to the remainder of the highway.
Section 6029 of the General Statutes, the other notice statute, originated as Chapter 176 of the Public Acts of 1895, and has always referred to actions for damages caused by negligence in the general sense. As already noted, the provision for notice to the corporation made liable under Chapter 140 of the Public Acts of 1869, was inserted in 1883 (Public Acts, Chapter 105) and long antedated the general railroad notice statute, 6029. This also may be taken as indicating *Page 569 that what the Legislature had in mind in 1883 was the kind of notice provided in the same section to be given to a municipality in a case where it, instead, was liable.
Municipal liability for defective highways, caused by neglect of governmental duty, rests on statute alone; when that liability is transferred to a railroad company it should still be regarded as statutory, and subject to the same limitations (Lavigne v. New Haven, supra, 700) rather than relegated to common-law negligence. It seems to me that in Coburn v. Connecticut Co., 84 Conn. 654, 81 A. 241, due weight may not have been accorded the consideration just mentioned under which, as noted in the Lindblade case, there would be no recovery except for the statute. While the Root case cited the Coburn case with apparent approval (page 232) it held (page 239) that 3719 (General Statutes, 1918) now 3675 did not apply to street railways and recovery was had under another statute (General Statutes, 1918, 1515) allowing recovery over by the state of the amount of any judgment rendered against it for a highway injury, from any other person by whose negligence the injury was caused. In my opinion the trial court was right in concluding that failure of the plaintiff to give notice as prescribed by 1420 of the General Statutes precludes recovery.