Brown v. Inhabitants of Skowhegan

Emery, J. The plaintiff was engaged in teaching an evening singing school in a district school house in the defendant town. The school house lot adjoined the highway for some six rods. The travelled part of this highway past the school house, was some eighteen feet wide, ánd free from defects. The wrought part between the ditches was twenty-seven feet wide and the evidence discloses no defect in all that width. Within the limits of the located highway, along that side of the wrought part toward the school house, was a ditch about eighteen inches deep, and extending past the school house lot. This ditch had been made and was kept open for the drainage of the wrought part of the road. Near one end of the school house lot, large rocks were in the ditch, forming a crossing which the scholars used, but the rest of the ditch was open and exposed. One night the plaintiff returning from his work, in passing in the darkness from the school house to the street, fell into this ditch and was injured. He claims that the street was defective by reason of this open ditch, and that he is entitled to recover of the town under the statute. He contends that, whatever may be the rule as to ditches passing private buildings, all ditches passing public buildings should be covered, or so guarded, that the public passing from such buildings to the travelled part of the road, need not fall into them. We do not find any such duty imposed upon towns by the statute, and if not imposed by statute it is not imposed at all. By the statute (R. S., c. 18, § 52,) “Highways, &c., shall be opened and kept in repair, so as to be safe and convenient for travellers. * * * ” The statute, being somewhat of a penal nature, is not to be extended by construction. It has always been construed strictly. The court assumes that the legislature has expressed in terms all the duties it meant to impose. It has [277] been held that the town need not open and keep in repair the entire width of the way, — that it sufficiently complies with the statute, if it constructs and keeps in repair a smooth free roadway of sufficient width for teams to pass along, and by one another without obstruction, — and that it is not liable to a traveller injured by his wagon striking a rock within the limits of the highway, but outside of the part purposely fitted for travel. Perkins v. Fayette, 68 Maine, 152. We think it would be an unwarrantable extension of the statute, to hold that towns must provide safe ingress and egress to and from the roads they make. The statute does not say they must, and we see no reason why they should. Owners or -occupants of buildings and lots cannot well keep the public streets in repair, but each abutter can take care of his own approaches, and it is reasonable that he alone should be responsible for them. His right to connect his premises with the travelled part of the public road, by means of suitable roads and crossings will not be questioned, and it may reasonably be left to him to determine the location and character of such approaches, if any. It was held in Philbrick v. Pittston, 63 Maine, 477, in a well considered opinion, that a person injured by a hole in a plank— crossing over a gutter within the limits of the highway, while passing from a private way into the public way, could not recover of the town for injuries thus received. The plaintiff in that case was within the limits of the street, and was crossing the ditch on his way to the part prepared for travellers, but had not reached it. It was declared in the opinion, that it is no part of duty of towns to provide safe and convenient access to their streets from any man’s house lot or garden. See also Leslie v. Lewiston, 62 Maine, 468. We think the principle thus declared, applies as well to school house and lots. The fact that these are in the nature of public buildings and places, cannot change the principle. Those charged with the care of such buildings and places, must care for the approaches. The fact that part of such approaches are within the limits of the location of the highway, does not put their care upon the town. Those frequenting such places must use the approaches [278] thus provided, or make their own way. They are not upon the risk. of the town, until they have reached that part of the road prepared for travellers and thus become travellers. The duty of the town is only to travellers upon its roads, not to those approaching or leaving its roads. The plaintiff must prove, as indeed he has alleged, that he was travelling upon the road. Stinson v. Gardiner, 42 Maine, 248; McCarthy v. Portland, 67 Maine, 167. As was said in Philbrick v. Pittston, supra. “He (at the time of the accident) had not reached that part of the street which was appropriated to public travel or prepared by the town for that purpose.” Hence, he was not, when hurt, a traveller, and so cannot recover. Exceptions overruled. Non-suit confirmed. Peters, C. J., Walton, Virgin, Foster and Haskell, JJ., concurred.