Tripp v. Inhabitants of Lyman , 37 Me. 250 ( 1854 )

Hathaway, J.

— The duties and liabilities of towns, concerning highways, are prescribed by law. R. S., c. 25, § 57, makes it the duty of towns to keep their highways in repair, and amended, from time to time, that the same may be safe and convenient for travelers and their horses, teams, carts and carriages; and § 89 makes the town liable, in a special action on the case, to any person, who shall receive any bodily injury, or shall suffer any damage in his property, through any defect or want of repair, in any highway, which such town was bound by law to repair, if the town had reasonable notice of the defect or want of repair. In such action, the allegation of the precise time is immaterial, and need not be proved strictly as alleged. 1 Chitty’s PL, 258, 383 ; 1 G-reenl. Ev., § § 56, 61; 2 Greenl. Ev., § 624. The evidence offered by the defendants, to show that, at the time of the accident, .and before and afterwards, “ a considerable portion of the roads in Lyman had defects, similar to that where the accident happened, occasioned by the freezing and thawing of the ground only,” could have no legitimate effect to relieve the defendants from their liability for the cause? of action, for which this suit was commenced, and it was properly excluded. The statute does not render the town liable, unless they bad reasonable ■ notice of the defect, or want of repair. The ease presents no exceptions to the instructions given the jury upon the subject of notice, nor to-the neglect • of the Judge to- instruct them concerning it. The presumption is, therefore, that they were properly instructed in that matter.

The statute does not render the liability of the town dependent upon the causes which produced the defect in the road; nor does It prescribe or define what imperfections in a road would render it defective. It is the proper business of the jury to determine whether or not the road was “ safe and convenient,” as the statute requires. Merrill v. Hampden, 26 Maine, 234.

No error is perceived in the rulings of the Judge, and the exceptions are overruled.

Sheplev, C. J., and Rice and Gutting, J. J., concurred.