Copyright
William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) online

. (page 52 of 109)
Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 52 of 109)
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cumbered highway. The injuries are few that are received upon high-
ways, however defective, that are not induced in a greater or less



33i WAYS AND HIGHWAYS.

degree, l)y .some ])rcviuusly unknown defect, either in tlic carriage or
liiirness, or by the friglit of tlie liorse, or some similar cause, usually
termed accidental ; and to say that under circumstances of danger and
peril from those and other accidental causes, the traveler is not entitled
to the safety that a highway unincumbered and without defects, that
is, a highway made reasonably safe against the occurrence of such ac-
cidents as these, would afford, at a time when, of all others, lie has the
greatest need, would seem to be repugnant to reason and common sense.
Winship V. Enfield, 42 N. II. 197; Ring v. City of Cohocs, 13 Hun
(K Y.), T6, 86. And see Hunt v. Town of Pownal, 9 Vt. 411.

In Maine and Massachusetts it is held that if the horse is uncontrol-
lable, and that cause combined with the highway's defect occasions the
injury, the town is not liable. See Moore v. Ahhott, 32 Me, 40 ; Fogg
V. Nahant, 98 Mass. 578. But in the latter State it is allowed that if
a horse driven with due care is caused to step out of the traveled track
by an object within the limits of the higliway, which would cause an*
ordinarily gentle and well broken horse to do so, whereby the traveler
is brought into contact with a defect in the surface of the way, or a
place on the side of the way defective for want of a railing, and so is
injured, the town is liable in damages ; although it might not be liable
in case of a less formidable object, or of a horse of a vicious habit.
8tone V. Hiibhardston, 100 'Mass. 49. And it is conceded in Maine
that if a defect in a highway causes such a breaking and derangement
of a safe and proper vehicle, that a kind and well-broken liorse is
frightened beyond the control of a reasonably skillful and careful
driver, and violently running down a steep hill, falls, and throws out
and injures the traveler, is to be considered the proximate cause of
the injury, and the fall is not to be considered a contributory cause of
the aocident. Willey v. Inhabitants of Belfast, 61 Me. 569. And
it has been held in Massachusetts that a town was not liable for
an injury to a traveler resulting from a collision of his carriage with a
hitching post, in a dark night, the highway being smooth, forty feet
wide, and nearly level, although the carriage path was not bounded
from the sidewalk by any gutter, trees, railing, or curb-stone, Macom-
her V. Taunton, 100 Mass. 255.

A failure to put a railing or guard on the outer edge of a curved
sidewalk leading to a bridge narrower than the street is gross negligence,
for w^iieli a city is liable for all damages resulting from its unprotected
condition, Chicago v. Gallagher, 44 111. 295. So a town is liable for
personal injuries occasioned by the want of a railing along a highway
twenty feet wide where the traveled rut was within fourteen inches of
the side descent. Woods v. Groton, 111 Mass. 357. But where broken



WAYS AND HIGHWAYS. 335

hv'ick had been spread over a surface several feet square and a few
inches high outside the line of the location of a highway, or if within
such line outside of the traveled part of the highway, it will not
constitute such a defect therein as will oblige the town to put up a rail-
ing for the protection of travelers, or as will render it liable for in-
juries received by a traveler in falling over them. Marshall v. Ips-
wich^ 110 Mass. 522.

A town is not liable for damages for an injury to a person by the
falling of heavy weights attached to a flag stretched across a highway.
Hewison v. J^ew Ha/oen^ 34 Conn. 136. And coasting in highways,
though the selectmen have neglected to forbid it, is not an insufficiency
of a highway which would render a town liable for injuries by reason
thereof. Ilutchinson v. Concord, 41 Yt. 271. An object in a high-
way, as newly split-stone, which by its bright appearance would frighten
an ordinarily well-trained horse, is not a defect that would render the
town liable for damage, unless so located in the road as to endanger a
collision. Cooh v. Montague, 115 Mass. 571.

From a well-defined and safe road there was a passageway, within
the limits of a highway, leading round to a watering-trough, and coming
into the road beyond. The trough was within the limits of the high-
way and had been placed there without the authority of the town. The
plaintiff drove from the highway around the passageway to the trough,
for the purpose of watering his horse, and while leaving the trough,
the horse drew the carriage wheel upon a rock lying in its original
place in the passageway, whereby the plaintiffs wife was thrown upon
the trough and injured. There was nothing in the passageway calcu-
lated to deceive or entrap travelers into concealed danger, and the way
was only used for the purpose of watering animals. It was held that
the town was not liable for the injury to the plaintiff's wife. Hall v.
Vnity, 57 Me. 529.

•What constitutes an insufficiency in a highway is matter of fact, to
be determined by the jury, under proper instructions. Washhurn v.
Town of Woodstock, 49 Yt. 503 ; Iloioardv. Mendon, 117 Mass. 585 ;
Ghappell V. Oregon, 3G Wis. 145 ; Congdon, v. Norwich, 37 Conn. 414.

A city is liable for injuries resulting from its neglect to provide ade-
quate lights for a bridge over a stream which crosses a street within the
limits of the city. Chicago v. Powers, 42 111. 169. It is liable in
damages for an injury resulting from a defective sidewalk. Blooming'
ton V. Bay, 42 111. 503. And it is not exonerated from this liability
by any statutory provisions for the payment of the expenses of the
repairs by the abutting lot-owners. Cuthhert v. Appleton, 22 Wis. 642.

The commissioners of highways of adjoining towns are jointly liable



33G WAYS AND HIGHWAYS.

for an injury t'liused by their neglect to keep in repair a bridge across
a stream forniiiig the boundary lino between the towns, whicli had been
erected and maintained as a joint-bridge between said towns, the corn-
misssioncrs being shown to liave sufficient funds in tlieir hands for the
purpose of repairing such bridge. Bnjan, v. Landon, 5 N. Y. Sup.
Ct. (T. & C.) 594: ; S. 0., 3 Hun, 500.

AYhere one mistook a private way for a public way, and after pro-
ceeding tliereon over fifty feet, in attempting t(^ turn back, was injured
by a defect therein, it was held that tlie town was not liable therefor,
although there was no fence or sign to mark the deviation of the pri-
vate way. Chaiyman v. Cook, 10 K. I. 304 ; 14 Am. Rep. 686 ; approv-
ing, 43 Vt. 446. But where a higliM^ay had become impassable by a
freshet, and the selectmen, through one of their number, who had by
them previously been placed in supervision of the town interests in his
neighborhood, put up barriers to turn the travel around the dangerous
portion of the highwa}', and over a hill road wliich was a private way
not adopted by the town, such temporary adoption of the private way
as a substitute rendered the town liable for damage occasioned by its
insufficiency and want of repair, and the private way thereby became
a substitute for all travelers, as well as those who had occasion to use it
in going to and from houses situate thereon, as those who used it to
pass around the dangerous portion of the highway. Dickinson v.
Hochingham, 45 Vt. 99. And generally a town is liable for injuries
from a defect outside of the traveled portion of the highway, if the
traveler uses due care, and is obliged by an obstruction in the traveled
track to deviate threfrom. Kelley v. Fo7i du Lac, 31 Wis. 179.

A town or city is not liable for injuries resulting from a sudden
defect of a highway or sidewalk unless by reasonable diligence the
authorities might have become aware of its existence. Actual or pre-
sumed notice must be proved. Ward v. Jefferson, 24 Wis. 342 ;
Kenyan v. City of Indianapolis, 1 Wils. (Ind.) 129 ; Palmer v. PoHs-
mouth, 43 N. II. 265 ; Dodge v. Stacy, 39 Vt. 558 ; Dorlon v. Brook-
lyn, 46 Barb. 604. And, having notice of the obstruction, they should
have reasonable time and opportunity to remove the same. Spear v.
Lowell, 47 Vt. 692 ; Palmer v. Portsmmith, 43 N. H. 265 ; Winn v.
Lowell, 1 Allen, 177. But the fact that the danger to travelers from
a defect in a highway has been increased through the ordinary action
of the elements, within twenty-four hours before an accident occurring
from the defect, does not affect the hability of the town therefor.
Blood V. TLuUbardston, 121 Mass. 233. And, although notice of a
defect may be inferred from the length of time during which the de-
fect has existed {Rolt v. Penohscot, 56 Me. 15), yet an instruction to



WAYS AND HIGHWAYS. 337

tlie jury in an action for an injury caused by a defective highway, to
the effect that if the jury should find that the defect which occasioned
the injury was open and visible during the whole of a certain month,
tlien that fact would constitute sufficient notice to the authorities of the
defect and render them liable, is erroneous, because there is no rule of
law prescribing for what length of time the continuance of a defect
shall constitute notice of the existence of such defect. Colley v. West-
hrooTc, 57 Me. 181 ; 20 Am. Eep. 30.

§ 21. Action for injury arising from defects in highways. To
render a town or city liable for an injury sustained on a highway, it
must have been sustained by a traveler / and the defect of the way
either alone or combined with some matter of pure accident for which
the traveler was nat in fault must have been the sole cause of the injury.
JIaioes V. Fox LaJce, 33 "Wis. 438 ; Cumings v. Centre Ilarhor, 57 N.
H. 17. And the person bringing the action must show a special and
peculiar injury to himself not common to the public. The fact that
his injuiy is greater in degree than that to others does not entitle him
to maintain it. The injury must be special. It may be to more than
one person, but it must not embrace the entire public. McCowan v.
WTiitesides^ 31 Ind. 235 ; Carpenter v. Mann, 17 Wis. 155 ; Milarkey
V. Foster, 6 Oreg. 378 ; Brady v. Shinhle, 40 Iowa, 576. So one who
is not injured by the vacation of a highway in any other sense than
the public generally, cannot maintain an action for damages therefor.
Ellsworth V. Chickasaw Co., 40 Iowa, 571. Nor can one maintain an ac-
tion for obstructing a public way who proves no damage peculiar to him-
selt beyond being delayed several times in passing along it and being
obliged in common Math every one else attempting to use it, either to
go by a less direct way, or to remove the obstruction. Winterbottom v.
Lord Derhy, L. R., 2 Exch. 316. And the person bringing the action
must cause it affirmatively to appear that ordinary care was exercised
in passing over the highway ; and if, on the whole testimony on this
point, the weight of evidence is clearly against the plaintiff, a new trial
M'ill be granted when a verdict has been rendered in his favor. Glea-
son V. Bremen, 50 Me. 222 ; Rusch v. Davenport, 6 Clarke (Iowa),
443. But see Hill v. New Haven, 37 Yt. 501, which holds to the
contrary. So a person, who voluntarily attempts to pass over a side-
walk which he knows to be very dangerous by reason of ice upon it
when he might easily avoid it, cannot maintain an action against the
town which is bound to keep the way in repair to recover for injuries
sustained by falling upon the ice. Wilson v. Charlestown, 8 Allen, 137.

A person who, while usin'g a highway simply for the purpose of
play, meets with a personal injury by reason of a defect therein, can-
YoL. YI.— 43



338 WAYS AND HIGHWAYS.

not maiiitaiu an action to recover damages therefor against the town
or city which is bound to keep the same in repair. Blodgett v. Boston,
8 Allen, 237. And the same is true where a person receives an injury
from a defective highway while using such highway for the c^jpress
purpose of horse-racing. McCarthy v. Portland, 67 Me. 167; S. C,
24 Am. Rep. 23. The owner of land adjoining a highway may main-
tain an action at common law against the town to recover damage
caused to his land by the fault or negligence of the town in not build-
ing and maintaining the road in a reasonably suitable and proper man-
ner. Gilman v. Zaconia, bo JST. H. 130; 20 Am. Eep. 175.

Where a highway is incumbered with snow, under such circumstan-
ces that the town is not in fault, and a person who holds the office of
surveyor of the district undertakes to assist a traveler over the incum-
brance, the town is not liable if by reason of his want of ordinary care
the traveler's horse is injured. Cofran v, Sanhornton, 56 N. H. 12.

An individual cannot maintain an action against a railroad company
for constructing their road so as to obstruct a highway, in which he is
interested as one of the public, desiring to use such highway. The
liability of the company is to the town for obstructing the highway,
and the remedy of the individual is by proceedings against the town
for neglect of its duty to keep the highway open and in repair. Buck
V. Connecticut, etc., R. JR. Co., 42 Yt. 370. But see Gillett v. Western
B. B. Co., $ Allen, 560.

§ 22. Defense to such action. Where corporate authorities are
sued for damage caused by their negligence in leaving an obstruction
upon a public street, they cannot defend on the ground that the
street was not legally established. Mayor, etc., v. Sheffield, 4 Wall.
(U. S.) 189. But see Hall v. Manchester, 39 N. H. 295 ; State v.
Blonien, 36 Wis. 303. And it is no defense that the plaintiff obstructs
it on his own land. Langsdale v. Bonton, 12 Ind, 467. And to an
information for obstructing a public highway by keeping empty vehicles
standing thereon, in front of the defendant's inn, a user by the defend-
ant of such highway for the same purpose for twenty years is no
defense. Gerring v. Barfield, 16 C. B. (K. S.) 597 ; State v. Pierson,
37 N. J. Law, 216. But to an action for obstructing a highway, it is a
good defense that the obstruction consists of building material properly
placed in the street, and that such use of the street was reasonably
necessary at the time and place. Wood v. Mears, 12 Ind. 515.

It is no defense to an action for an injury caused by a defect in a
highway, that the town used ordinary care and diligence in repairing
the road, if by such care the road is nofmade safe and convenient, but
remained defective. Rorton v. Ipswich, 12 Cush. 488. Nor is it a



WAYS AND HIGHWAYS. 339

defense to show that at the time the damage was sustained a considerable
portion of the roads within the hraits of the defendant town liad im-
perfections similar to those which caused the injury, caused by the
freezing and thawing of the ground. Tripp v. Lyman, 37 Me. 250.

The defendant owned a ferry, and one of the ropes used in working
it was stretched across part of the public highway, the plaintiff upon
the public highway fell over the rope and was injured, for that injury
suit was brought and the defendant pleaded that he had leased out the
ferry, and that it was worked by the lessee at the time of the injury,
and it was held to be a good defense. Hale v. Durant, 39 Tex. 667.

§ 23. Contributory negligence. All persons using streets and side-
walks and other highways have a right to assume that they are in a
good and safe condition, and to regulate their conduct upon that as-
sumption. Kenyon v. City of Indianopolis 1 Wils. (Ind.) 129 ; Gil-
lepsie V. Newhurgh, 54 "N". Y. (9 Sick.) 468 ; BUls v. City of Ottumwa,
35 Iowa, 107. And only the same degree of care to avoid accident is
required of one passing along the street by night, as by day, although
in the former case this may call into exercise greater caution and
watchfulness. Stier v. City of Oslcaloosa, 41 Iowa, 353 ; Pollard v,
^ Wohurn, 104 Mass. 84. And though a traveler upon a highway be-
comes aware of an obstiniction or defect before him, he is not necessarily
chargeable with negligence because he attempts to proceed. His right
to recover damages for injuries sustained through the defect or obstruc-
tion depends, so far as the point of contributive negligence is concerned,
not on the question whether he knew of the defect, and might possibly
have stopped or avoided it, but whether he had reasonable cause to think*
he might escape from it by the means which he adopted, and whether
he used reasonable care in making the attempt. Thomas v. Western
Union, Tel. Co., 100 Mass. 156 ; Smith v. St. Joseph, 45 Mo. 449 ; Ma-
honey V. Metrop>olitan B. R. Co., 104 Mass. 73 ; JVicks v. Marshall,
24 Wis. 139. So in an action against a town to recover for injuries
sustained by the plaintiff, in driving across a horse railway track, where
a guard rail was insufficiently fastened, it was held that the fact that
he knew of the railway, but took no special care on that account, was
not conclusive of a want of due care. There is no presumption of law
that a street railway obstructs the ordinary travel on the highway, or
makes it dangerous. Hawks v. Northampton, 121 Mass. 10. So, too,
the fact that one, when injured by a defect in a highway, was, in viola-
tion of a statute, attempting to drive his carriage past another carriage
traveling in the same direction, does not prevent a recovery in the
absence of negligence or other fault on his part, although the fact is com-
petent evidence for the jury on the question of negligence. Damon



340 WAYS AND HIGHWAYS.

V. ScUuate, 111) Mass. GO; 20 Am. Ilo]\ 315. And the circumstances
of the Ciiso were considered to warrant a finding, that a girl eighteen
years okl ■was in exercise of the ordinary prudence of her sex and age,
in attempting to pass a horse and coal cart obstructing a street near an
embankment not guarded by railing. Snow v. Provincetown^ 120
Mass. 580.

There is no rule that a person, injured by being thrown from his
wagon in consequence of defects in the liighway when his horses were
running away, cannot recover if it is shown that the same horses had
often run away before. The question is for the jury whether he was
using reasonable care when the injury occurred. City of Centralia v.
Scott, 59 111. 129. See Bing v. City of Cohoes, 13 Ilun (N. Y.), T6;
Baldwin v. Greenwoods Turnpilce Co., 40 Conn. 238 ; 16 Am.
Eep. 33.

Where a young girl was injured at night by falling from a highway
into a ditch dug by her father's landlord, for the purpose of draining
the premises, it was held that even if she were a "traveler," the neg-
ligence of her father in permitting the ditch to remain uncovered
would preclude her from recovering from the town for the injur)^
Leslie V. Lewlston, 62 Me. 468.

§ 24. Damages recoverable. Interest, it is held, cannot be added
to the sum found as damages, by the jury, from a defect in a highway.
Sargefit v. Harripden, 38 Me. (3 Heath.) 581. And the amount of
damages claimed under the Maine act of 1876, ch. 97, for an injury
resulting from a defect in the highway, need not be stated in dollars
and cents in the notice. Sawyer v. Naples, QQ Me. 453.

In an action for an injury to the plaintiff's horse from getting
one foot into a hole in a defective bridge, evidence of the animal's
value before and after the accident is admissible, also of the condition
of his legs within a week afterward, and also of his safe and kind dis-
position previously, and his timid conduct subsequently, as to crossing
bridges. Whitely v. Inhabitants of China, 61 Me. 199.

In an action by a husband and his wife to recover for injm'ies to her
from a defective highway, an instruction prayed for, that the jury might
consider the probable shortening of her life, also future medical expense,
also loss to him of her future labor, was refused, and the refusal sus-
tained. Colby v. Inhabitants of Wiscasset, 61 Me. 304.

As to matter of damages, see Vol. II, pp. 431, 471.



WAYS AND HIGHWAYS. 341



AKTICLE 11.

USE OF HIGHWAYS.

Section 1. In general. Generally, the only legitimate use that can
be made of a street, or a sidewalk, or other highway, by a private
person (not an owner of adjoining land), is that of passing and repass-
ing. Smith V. City of Leavenworth, 15 Kans. 81 ; Stinson v. Gardiner,
42 Me. 248. But highways may lawfully and properly be used for
other purposes than the accommodation of the public travel, provided
such use be not inconsistent with the reasonably free passage of the
, public over them. They are designed and constructed for general con-
venience, and may be used, as they have ordinarily been accustomed to
be used, without nuisance. Time and necessity, as well as locality, are
important elements in determining the character of any particular use
of a highway. Greaves v. ShattucJc, 35 N. H. 257.

§ 2. Rights in using highway. A party having before him the
whole road free from obstructions, and having no notice of any carriage
behind him in season to stop, or change his course, is at liberty to travel
on any part of the road that he pleases. Foster v. Goddard, 40 Me.
64 ; Smith v. City of Leavenworth, 15 Kans. 81. .He has a right to ex-
pect from others ordinary prudence, at least, and to rely upon that in
determining his own manner of using the road ; not to justify his own
foolhardiness, but to wan-ant him in pursuing his own business in a con-
venient manner. Harpell v. Curtis, 1 E. D. Smith (N. Y.), 78. Chil-
dren are not restricted in passin^afN^and repassing upon the streets and
roads more than adults. StimsQn v. Gardiner, 42 Me. 248. A lot
owner, or any person under him, has a right to use any j)ortion of a
street in front of his lot in passing to or from his lot, and to and from
the improvements on the same, including the house, cellar, etc. Smith
V. City of Leavenworth, 15 Kans. 81. But the right of the public in a
highway, even so ancient that its origin is unknown, is ordinarily lim-
ited to an easement for the purposes of travel. Boston v. Richardson,
13 Allen, 146.

A highway is a public way for the use of the public in general, for
passage and traflfic, without distinction. Persons making use of horses
as the means of travel or traffic by the highways have no rights therein
superior to those who make use of them in other permissible modes ;
improved methods of locomotion are admissible, and cannot be excluded
from existing public roads, if not inconsistent with the present meth-
ods. Macomber v. Nichols, 34 Mich. 212; 22 Am. Eep. 522. So, if
one in making use of horses as the means of locomotion on the high-



342 WAYS AND niGHWAYS.

ways is injured by the act or omission of another using a steam loco-
motive, the question is not one of superior privilege, but whether, under
all the circumstances, there is negligence imputable to some one, and,
if so, who sliould be accountable for it. Id. Where two parties, each
without any better right than the other, strive to occupy the same place
in the public highway, he is in the wrong who first uses force. Goodr
win V. Avenj, 26 Conn. 585.

§ 3. Duties and liabilities in using. When a driver attempts to
pass another on a public road, he does so at his peril. At least, he
must be responsible for all damages which he causes to the one whom
he attempts to pass, and whose right to the proper use of the road is
as great as his, unless the latter is guilty of such recklessness or even
gross carelessness as would bring disaster upon himself. Avegno v.
JIart, 25 La. Ann. 235 ; 13 Am. Eep. 33. So, if a party be found
with his vehicle upon the half of the road to which he has not the
right, another, in passing, or attempting to pass, cannot carelessly or
imprudently rush upon him, or his vehicle, and if he has sustained
damage in the rash act he cannot maintain an action for the injury.
If an attempt to pass in such case would be reasonably safe and pru-
dent, it may ])robably be made, and if damage ensue, an action will lie
for redress. But if such attempt would not be reasonably safe and
prudent, it is the duty of the traveler to delay, and seek redress by
action for any injury sustained by the detention. Brooks v. Hart, 14
N. H. 307.

A person driving a vehicle across a street is bound to see that he
does not interfere with others in theTj^roper exercise of their right of
passing. Fales v. Dearborn, 1 Pick. 345.

A builder depositing earth or material in a street or highway oppo-
site his lot is only bound to use ordinary care and diligence for its
removal within a reasonable time, not to remove it as soon or as fast
as may be absolutely possible. Hxmdhaiisen v. Bond, 36 Wis. 29.



Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 52 of 109)