Perkins v. Fayette , 1878 Me. LEXIS 50 ( 1878 )

Peters, J.

A question arose at the trial as to what extent towns were responsible for injuries to travelers, occasioned by their teams coming in collision with obstructions on the side of the road beyond the traveled way. The judge instructed the jury that towns were not required to render the road passable for the entire width of the whole located limits, and that the duty of the town was accomplished by making a sufficient width of the road in a smooth condition so that it would be safe and convenient for travelers. He also directed the jury that the town had the right, in making or repairing a road, to remove stones and stumps onto the sides of the way and leave natural obstructions there, provided the same were situated so far from the traveled track that persons passing over the road with teams might pass without danger of coming in collision with them. We think it would be utterly impossible for towns, as a general rule, to do more than that. No doubt there is a chance that the team of a traveler, in the dark or from fright of the horse or some other mishap, might strike against a rock on the side of the way. So, if the rock was not there, it might get into a ditch or bog or against a railing or fence, or encounter some other disaster. It is enough that the way is safe and convenient in view of such casualties as might reasonably be expected to happen to travelers. All possible accidents cannot be provided against by anybody. The judge did not give the requested instructions, but-in his own words covered the grounds assumed by them, defining the municipal liability clearly and correctly. Johnson v. Whitefield, 18 Maine, 286. Dickey v. Maine Tel. Co., 46 Maine, 483.

It seems that the plaintiff’s horse became frightened at cows in the road having boards on their horns, and, being beyond the control of the driver, turned out of the traveled way and ran around between the ditch and the fence until the wagon brought up against a rock on the side of the road, causing the injury complained of. The instruction to the jury was that, if the accident was produced by the fright at the cows and also by a defect in the way, by the combined action of both causes, the plaintiff could not recover. This was in accordance with the doctrine established in the leading and (in our own state) important case of Moulton v. Sanford, 51 Maine, 127. The plaintiff, by the learned argument of her counsel, claims that this case should be directly and positively overruled. We are not convinced that it would be wise to do so. We know the opposite view is taken by several other courts. It is to be admitted, also, that we do not ordinarily apply the same rule, in this respect, in cases of this kind that we do in other classes of cases. The remedy sought for here is statutory and not at common law. The early cases in this state construed the statute somewhat strictly. The plaintiff contends that a town should bo liable, even if the defective way is not the sole cause of the injury, provided that the co-operating and contributing cause is nothing for which the person injured is at all in fault and over which he could exercise no agency or control. This view was taken by a minority of the court in the case alluded to, but the ease was decided otherwise, upon the ground that the positive terms of the statute, as interpreted by previous adjudications, would not admit of such a construction. How that the principle has been so deliberately affirmed and established, we have no hesitation in declaring that it should be firmly maintained. Its restraining influence, in view of the inconsiderateness of juries in too many of this class of cases, cannot but be productive of good. In this particular case, it would be difficult to see that, in any just and proper sense, any defect in the way was even one of a combination of causes producing the accident.

Exceptions overrvled.

Appleton, C. J., Walton, Dickerson, Barrows and Dan-forth, JJ., concurred.