Stinson v. City of Gardiner , 42 Me. 248 ( 1856 )

Tenney, C. J.

The obligation of the defendants to keep in repair, the highway on which the injury to the plaintiff is alleged to have been received, the defective condition of the railing at the time of the injury, and reasonable notice thereof to the city of Gardiner, are admitted.

Evidence was introduced by the plaintiff, tending to prove, that she was returning from school to her father’s house; that she passed on to a side-walk, elevated some eleven feet above the ground, on the outside of the way; that she stopped and leaned against a post to which the railing had been nailed, or against the railing, which gave way, having been loose and swinging for some time, and that she was thrown to the ground and seriously injured.

The defence was, that at the time and near the place of the accident, the plaintiff was at play in the road with another, or that the two were scuffling, and that she run, or was forced with some violence against the railing; and that the accident happened, while she was on the road for a purpose, and doing acts, which exonerate the city from liability to damages for the injury received.

From the exceptions, it is manifest, that the testimony introduced by one party, was in conflict with that introduced by the other in some respects, particularly, in reference to the plaintiff’s acts at the time of her fall.

All persons have the right to pass and repass upon public roads, so long as they violate no laws for the common good, or for the protection of individuals. Within these restrictions, they are entitled to the use of the highway for the purposes of travel; whether the object of that travel is business or pleasure; whether they pass on foot, with carriages, or in the various modes, which each individual may choose to adopt. Any part of the highway may be used by the traveler, and in such direction as may suit his convenience or taste, provided he therein conforms to all laws and well settled rules connected with such use. Children are not restricted in passing and repassing upon the streets and roads, more than adults. And the same rules are to be applied equally to all in regulating the use of highways for the objects designed.

Safety and convenience for travelers, and their horses, carts and carriages, are the rule by which it is to be determined, whether or not there be any defect or want of repair, or sufficient railing upon highways. R. S., c. 25, § 57. It being settled in a given case, that the way is defective in some of the particulars, wherein the statute requires that it shall be safe and convenient, a remedy is given to persons referred to, in the same statute, who shall receive any bodily injury, &c., through such defects. Sect. 89.

It is for travelers, and their horses, carts, teams and carriages, that these highways are to be opened, kept in repair, and amended from time to time. And the statute has not provided that they shall be kept safe and convenient for any others. A street or highway, may be put to a use at a particular time and place, and that use be entirely foreign to the design of passing and repassing thereon, for the purpose of travel, according to the meaning of the statute; and the appropriation may require a much better condition of the ground than would be necessary to make it safe and convenient for travelers. Hence, the rule of safety and convenience for the traveler, might differ essentially from that which would be applied, in a use, not provided for, or contemplated by the statute.

The public have no right in a highway, excepting the right to pass and repass thereon. Stackpole v. Healy, 16 Mass. 33. “Subject to the right of mere passage, the owner of the road is still absolute master. The horseman cannot stop to graze his steed, without being a trespasser; it is only in case of inevitable, or at least accidental detention, that he can be excused, even in halting for a moment.” Pearsall v. Post, 20 Wend. 111. In Peck v. Ellsworth, 36 Maine, 393, Sheplby, C. J., in delivering the opinion of the Court, says: “ Towns are made liable for injuries, by the statute, only to the extent of its provisions.” And it is held, in that case, that a party can recover of a town damages for an injury received on the highway, only when the defect or want of repair will prevent the way from being safe and convenient for travel.

If a circus company should appropriate a part of a public highway for the exhibition of their feats in horsemanship, or other acts of agility, entertaining no design to use that part of the way, as travelers, could one of that company have any ground for a claim of damages for bodily injuries, or other losses, on account of any defect therein, against the town or city, in which the way was located ? When children appropriate a part of the road for their sports, and cease to use it as a way for travel, the town or city through which the way passes, is not responsible for injuries, which may be received by any of the children so engaged, although the injuries may take place through a defect in the road.

The defendants requested the Judge to instruct the.jury, that if the plaintiff, at the time of the accident, was using the highway as a play-ground, and not as a traveler, she could not recover. This instruction the Judge refused to give; and it was not given, in substance, in any of the remarks made by the Judge to the jury. The facts assumed in this request, had some support at least in the evidence, as reported in the exceptions ; and, therefore, the instructions requested, were not for a case purely hypothetical. If the plaintiff was using the road as a play-ground, and not as a traveler, the use thereof for purposes of travel, must be regarded as entirely suspended, and she was using the ground for an object altogether different from that contemplated by the statute.

We think, according to well settled principles, the instructions should have been given.

Exceptions sustained, verdict set aside, new trial granted.

Rice and Appleton, J. J., concurred. Cutting, J., did not sit.