Phillips v. Inhabitants of Veazie , 40 Me. 96 ( 1855 )

Appleton, J.

This was an action on the case, brought by the plaintiff to recover compensation for an injury sustained in consequence of a defect in the road over which he was passing.

There seems to have been little question as to the situation of the road, and that its defective condition was occasioned by the acts of the Penobscot Railroad Co., in constructing their road over that of the defendants.

The Court instructed the jury, that “if they were satislied by the evidence beyond any reasonable doubt, that the highway was defective, and that the defendants had reasonable notice of the defect in it, and that ordinary care was not exercised to give notice to the public, or to put travelers on their guard against danger of injury occasioned by such defects in the highway, caused by the changes made and being made therein: and that the plaintiff in the exercise of ordinary care, and without fault om his part while traveling over the road was injured by reason of such defect alone, he would be entitled to recover pay for the actual damage occasioned to him by such injury.” This instruction would seem sufficiently favorable to the defendants. It is not .perceiyed to afford good ground of exception.

The plaintiff was traveling in the night, and so far as the evidence indicated, ignorant of the condition of the road. It seems there was a fence erected across the sidewalk on the road, for the purpose of notice and protection. In reference to this state of things, the presiding Judge remarked, “ that although in this case the fence across the sidewalk might have been sufficient notice and a guard to those who had knowledge of it, yet the jury would judge whether to those who had no knowledge of it, it might not, perhaps, in the darkness of the night, have contributed to increase the danger against which it was intended to guard, and have been itself a defect in the road.” It is urged that this was erroneous. But this was not. and could not have been understood to be an instruction as to any matter of law arising in the cause. It was simply a suggestion as to a matter of fact, the force and effect of which, was specially reserved for the consideration of the jury. No rule of law was given, nor was intended to be given for their guidance.

The injury was primarily occasioned by the acts of the Penobscot Railroad Corporation, and the instructions requested, were, that if so. occasioned, no action could be maintained against the. defendants. In Currier v. Lowell, 1& Pick. 170, a similar question arose, in reference to which the Court say, “that the case stands in regard to travelers just as if the inhabitants of the town were making extensive alterations in a highway,- or were making a new bridge, or repairing an old one upon a highway. They must conduct the work in such a manner as that the persons and property of the travelers passing, shall not be unreasonably exposed. Suppose a road or bridge was carried away by a torrent, the Legislature intended that repairs should be made in a reasonable time, and the proper guards or cautions, should be set up and made known to travelers, to prevent injuries. The

remedy for the traveler wlio is injured in person or property is immediately against the town, upon which the liability is imposed by statute.” It was held in Elliot v. Concord, 7 Poster, 204, that towns are liable in the first instance, for special damages occasioned by any obstruction placed in a public highway, without right, by any person or corporation. In that case, a railroad company was required by its charter so to construct its railroad as not to obstruct the safe and convenient use of any highway. While building an embankment for their track across an highway, a traveler sustained special damages from the obstruction. The town in such case was hold primarily liable to the person sustaining damages. In Batty v. Duxbury, 24 Vermont, 155, the Court decided that where railroads obstruct the highways, towns must provide a suitable and proper way for the public to pass around the obstructions, and use proper and reasonable precautions to divert the travel from, such highways to the byway, while they remain unsafe for the public, and though the railroad be bound to make the byway, and fail to make it safe for public use, this will not exonerate the town from liability, for the town is primarily liable to the traveler. The town must make the road reasonably safe for travel, or see it so made by others. In State v. Gorham, 37 Maine, 451, this Court held, where bridges and abutments, erected by a railroad company, constituted part of' the highway, which tho town was bound to keep in repair, that in case of want of repair, the town was liable to indictment. According to the principles determined in the cases just cited, the instructions given must be regarded as correct, and those refused, as having been properly refused.

Exceptions overruled.

Judgment on the verdict.