Shepardson v. Inhabitants of Colerain

Dewey, J.

It is strongly argued by the counsel for the plaintiffs, that this case does not fall within the principles stated in Howard v. North Bridgewater, 16 Pick. 189, and Tisdale v. Norton, 8 Met. 388, and that, upon the facts supposed to be established by the evidence, the plaintiffs might well maintain this action. That it is not enough that th« injury be shown to have occurred within the actual limits of the located highway, seems to be well settled by authority ar.d upon sound principle. The contrary doctrine would, in effect, require the entire width of the highway to be free from obstructions, and fit for use for the traveller; a burden quite too onerous upon towns, that are bound to keep their roads in repair.

Then it is argued, that towns are bound to furnish safe and convenient roads at all seasons, and if they neglect to do it, they are responsible for all damages occurring within the limits of the road. This must be taken with some limitations, as there may be cases where roads may be impassable and great and dangerous obstructions may exist therein wholly impeding the traveller from passing over the fame, and yet no action accrue to the individual, who may thus be deprived of making use of the road. In many cases that may be supposed, the only remedy for such neglect of duty is by an indictment. It is not enough that the highway is defective and out of repair; the party claiming damages must be without fault on his part, and while travelling on the highway receive a direct injury. If the highway is impassable, by reason of some notorious defect, he is not at liberty to enter upon it, and pass over it to the place of the obstruction, and then select a new route over other lands, and travel upon it at the risk of the town, if injured by obstruction on such new route. Nor is it enough that the necessity for taking such other route was occasioned by the neglect of the town to keep their road in proper repair. The case of Tisdale v. Norton presented such circumstances strongly, but they did not avail. It is true that the injury, in that case, occurrea upon the new route, thus taken, without the limits of the highway; and that fact increased the difficulty of maintaining that action. But that case presented, as strongly as the present, the reasonableness and the necessity of the departure from the ordinary travelled way.

It was asked by the counsel for the plaintiffs, whether, if the wrought road through the lane had been obstructed by snow, and there had been used, for the public travel through the lane, some other part of the highway, and by reason of some obstruction therein, an injury had been sustained, the party thus injured might not have recovered damages, although travelling without the wrought road appropriated for the summer travel ? If he might, it was then inquired, why not here? The cases are by no means parallel. In the case supposed, the path travelled on is, for the time, the made way for travellers passing over the lane; the lane being, throughout its whole length, a public way. The traveller does not leave the ordinary route appropriated for travellers, for the purpose of entering upon a private way. But in the case at bar, there was no such newly appropriated way without the limits of the made way used by the public, for the purpose of continuing their travel upon a public way. The plaintiff left the wrought road, not for the purpose of finding a better road upon the public way, or with a view of continuing to travel upon the highway ; but he designedly left the wrought road, for the purpose of continuing his travel upon his private way over his own land. This he might do; but at his peril if injured thereby, he fully knowing the obstruction upon the lane road before entering upon his journey. The way which is set forth in the declaration, as the road out of repair, was found by the jury to have been properly constructed, to have been of proper width for travellers to pass and repass, with proper facilities to turn upon the road, and to have been, in all respects, such a road that the plaintiff might have travelled with safety, continuing thereon.

Could the defendants have been indicted for any want of repair as to this road ? Clearly they could not. The defect was elsewhere. It was the lane that was out of repair, and in an unfit state for the traveller to pass thereon; and if the plaintiff had received his injury there, the defendants would have been liable. But the road through the lane is not made the subject of this action. The plaintiff forbore attempting to pass over that part of the way, but did elect to leave the made way of another road, for the purpose of entering upon his private way, induced to do so by reason of the known obstruction in the lane road.

x The court are of opinion that the instructions to the jury were proper, and that judgment must be entered on the verdict for the defendants.