Saltmarsh v. Bow

FROM MERRIMACK CIRCUIT COURT. The instructions to the jury were, in substance, that if the path travelled by the public, within the limits of the highway, was so clearly defined and so plainly marked that persons passing there, and exercising ordinary care and prudence, would understand that it was the travelled path of the highway, they would have the right to *Page 430 pass in it; and if there was any defect, obstruction, or insufficiency, the town would be liable for injuries occasioned thereby. These instructions were correct. When a town widens the travelled path so as to hold out to the traveller that all parts are equally suitable for public travel, they will be answerable for damages growing out of defects in any part of it. Goodrich v. Colchester, 18 L. R. 468; Cobb v. Standish, 14 Me. 200. The case is the same if they suffer the same thing to be done by others. If they do not design to be held responsible, they are bound to place some monument, or otherwise indicate the limit of the way for public travel. Willey v. Portsmouth, 35 N.H. 313; Elliott v. Concord, 27 N.H. 204. As to the second exception. The judge who tried the cause gave the jury proper instructions, that the town would not be liable if the damage was caused proximately or wholly by the fault or negligence of the plaintiff. This is distinctly admitted. In a subsequent stage of his instructions, he explained under what circumstances the town would be liable, without repeating the qualifying directions of contributory negligence on the part of the plaintiff. "It must be understood that the jury have sufficient intelligence, after a legal principle has been correctly stated with its proper qualifications, to understand, when the judge has occasion again to refer to the principle, that he must mean to speak of it as subject to the same qualifications he had before stated. It cannot be supposed that any jury could so far mistake a judge as to suppose that, after he had once laid down a rule of law with qualifications and exceptions, he could intend immediately after to state the same rule without any qualification." BELL, J., in Belknap v. Wendell, 36 N.H. 250. But the instructions were limited to "persons passing there, exercising ordinary care and prudence," which would hardly apply to a traveller whose negligence helps occasion the injuries.