Todd v. Inhabitants of Rowley

Bigelow, C. J. We have carefully examined the rulings to which objection is now taken by the plaintiff’s counsel, and dc not find that they were in any respect insufficient or erroneous. 1. The first and most important question arises on the instructions given to the jury as to the duty of the plaintiff, in his capacity as highway surveyor of the district in which the accident happened, to make application to the selectmen of the town for permission to expend a further sum in repair of the roads within the limits assigned to him, in addition to that which he had laid out when he completed his work thereon early in the month of June. It is obvious that the point involved in this inquiry had a very material bearing on the issue before the jury. If the plaintiff had in any particular failed to perform his whole duty as surveyor in keeping the ways in his district m proper repair, or in obtaining the requisite means for that purpose, by reason of which the alleged defect in the road was allowed to remain, it is clear, on familiar principles recog nized in the adjudicated cases, that his own neglect in part con tributed to the accident by which he was injured, and he can not maintain an action against the town to recover damages [56] therefor. Wood v. Waterville, 4 Mass. 422; S. C. 5 Mass. 294. Loker v. Brookline, 13 Pick. 343, 347. A surveyor of highways is a special agent with a strictly limited authority, and has no right to bind the town by his acts or contracts beyond the scope of the precise power which is by law vested in him. And this power is the exact measure of his duty. He is bound to disburse the whole sum intrusted to him for the repair of the highways within his district, and also the additional sum of ten dollars which he is authorized to expend in case of a deficiency in the amount appropriated by the town, as is provided by Gen. Sts. c. 44, §§ 12,13. But a further duty is imposed on him by § 14. If a town neglects to vote a sufficient sum of money for the purpose of making repairs on the highways, or does not otherwise effectually provide therefor, the surveyor, “ first having obtained the consent of the selectmen for that purpose in writing,” is authorized to repair the ways within his district, so that the same shall be safe and convenient. If he fails to perform this part of his duty, he is guilty of neglect. If, in the contingency contemplated by this section of the statute, he omits to apply to the selectmen for their consent to make the additional expenditure requisite to a proper repair of the roads within his limits, he leaves an essential part of his official duty unperformed, and takes on himself the consequences of his own negligence. If he is subsequently injured by a defect in a road lying within the district assigned to him, he cannot recover compensation from the town, if it appears that he has failed within a reasonable time to make application to the selectmen for their consent to make additional repairs, in compliance with the provisions of law, or unless he shows that for sufficient cause such application could not have been made by him, or that, if made, it would have been impracticable to repair the defect, even if the necessary assent had been obtained. This general doctrine the plaintiff does not controvert. But he contends, and this is the point wherein he alleges the instructions to the jury were defective and erroneous, that he offered evidence tending to show that an application to the selectmen for their consent to make additional repairs would have been ineffectual and [57] useless, and that he was entitled to ask that the jury should be instructed that he was not guilty of negligence in failing to make a formal application to the selectmen, if he had reason to believe they would refuse their assent, and if a reasonable and prudent man would under like circumstances have acted in the same manner. It seems to us, however, that this instruction would have gone altogether too far. The surveyor of highways had no right to act on his own opinion or judgment that an application to the selectmen for their consent to make further repairs on the road would be denied. His legal duty was to make the application. The law vests in him no discretion whatever. Certainly it does not authorize him by casual conversations with the selectmen separately, apart from each other, to form a judgment whether their assent will be given or refused, and, in the latter alternative, to omit to discharge the duty which the law imposes upon him. Indeed, the result of an application such as the statute contemplates could not be known to the selectmen themselves until they had met together to consider and decide upon it. The power vested in them to grant or withhold their assent is intrusted to them, not as indi viduals acting separately, but as members of a board, in their official capacity, acting together, upon due deliberation and consultation. As indicating that the act is to be a formal one, the statute expressly requires that the assent, if given, shall be in writing. It is obvious that any attempt by the surveyor of highways to anticipate the judgment of the selectmen on such a matter would be not only entirely unauthorized, but would lack the essential elements on which a safe and correct opinion could alone be founded. The instructions given to the jury were in conformity to this view of the duty of the plaintiff as surveyor of highways ; and they were accompanied with proper qualifications, which prevented a too strict application of the rule of law to the plaintiff’s case. The jury were told that he was to be allowed a reasonable time within which to make the requisite application to the selectmen, and that if, for any reason, it was impracticable for him to do so, his omission to make it would be excusable, and would not render him [58] chargeable with negligence. But the instructions asked for went much further, and, if given, would have authorized the jury to find a verdict for the plaintiff, although he had wholly omitted to perform his legal duty by making an application to the selectmen, because in his opinion it would have been refused. Such a result he had no right to presume. It could only be made certain by making the application in form to the selectmen, and submitting to them the question after the exhaustion of all the means for making repairs which had been put into the plaintiff’s hands. 2. The instruction as to the duty of the surveyor to expend the money in his hands and within his control, under the warrant intrusted to him, on repairs of existing roads within his district, and not in the construction of new roads, or of portions of a road newly located and laid out, and never before wrought for public travel, was strictly correct. The meaning of the word “ repair ” is a key to the true interpretation of the statute. It does not mean to make a new thing, but to refit, make good or restore an existing one. The construction of highways does not come within the ordinary duties of a surveyor, but is usually effected by special contracts, or by persons employed for the purpose. Nor can we see that it makes any difference as to the duty of a surveyor, that a portion of an existing road within his district has been widened by lawful authority. So far as such enlargement of the way includes additional land, it is in effect a new way, and it sometimes happens that to complete and prepare it for travel requires a large expenditure. Clearly the surveyor has no lawful authority to use the money placed in his hands for ordinary repairs on existing roads in making new structures and additions thereto. 3. The objection to the evidence relating to the habits of the horse subsequent to the time of the accident goes to its weight rather than to its competency. The habit of an animal is in its nature a continuous fact, to be shown by proof of successive acts of a similar kind. Evidence having been first offered to show that the horse had been restive and unmanageable previous to the occasion in question, testimony that he subsequently [59] manifested a similar disposition was competent to prove that his previous conduct was not accidental or unusual, but frequent, and the result of a fixed habit at the time of the accident. Under the limitations prescribed at the trial, we think the evidence was admissible. Chamberlain v. Enfield, 43 N. H. 356. Judgment on the verdict.