Howard v. Inhabitants of Mendon

Endicott, J. The petition addressed to the county commissioners set forth that the highway leading from Hendon to Milford was difficult and inconvenient, and prayed, that “ such alterations, locations and specific repairs ” might be made therein, as the public convenience required. The commissioners having adjudicated that alterations were necessary, proceeded to locate the highway anew, fifty feet wide, “ substantially over the old location, as indicated by fences and walls,” in some places extending beyond the fences a few feet. Alterations were made in the grade through the entire length of the road. The changes within the town of Hendon were ordered to be completed by the town within a certain time to the satisfaction of the commissioners. The work was begun by the town on November 27, 1871, and barriers, with bars for the passage of teams, were erected at each end, with notices thereon: “ No passing over this road.” The accident happened on the evening of December 13, at a point within both locations, and the mound of gravel, against which the plaintiff’s carriage struck, was in or near the wheel tracks of the travelled part of the old road. There was evidence that the barriers or bars were down at the end of the road where the plaintiff entered, and that the plaintiff had no notice that it was impassable. The ruling was in substance correct, that this was a highway which the defendant was bound to keep in repair, and that the town was liable to the plaintiff, if he was injured by the defective [590] condition of the road while travelling over it and using due care., The county commissioners did not lay out a new highway, but made an alteration and new location of an existing highway. In such case, the old highway is not discontinued, if it lies within the new location ; and such parts of it as lie without are discontinued by force of the alteration itself. Hobart v. Plymouth, 100 Mass. 159, 165. The whole of the old way in this case was within the new location; the changes were principally changes in grade, and a widening of a few feet beyond the lines of the old fences. The relations of the town to the way itself, and the obligation to keep it in repair, were not changed by these proceedings. Its duty remained the same. And when it undertook to carry out the order of the county commissioners, and make the necessary changes and repairs, the town was required to take all proper precautions for the safety of travellers. The obligation on the part of the town to do this, in the execution of the order, was the same as if the town of its own motion had undertaken to make the changes and repairs; or as if the changes were made by another, authorized by law to make them. If a bridge is swept away, the town, while rebuilding or repairing it, must guard the approaches with proper barriers. If a railroad corporation, duly empowered, makes alterations in a highway, the town is liable, if the way is rendered unsafe thereby, and it has failed to warn travellers of its condition. Currier v. Lowell, 16 Pick. 170. It was a question for the jury, therefore, whether the barriers placed at the east end of the road were suitable and sufficient under the circumstances and upon the facts presented. If they were suitable and proper, the defendant would not be liable; if unsuitable and insufficient to protect a traveller in the night-time, using due care, or to warn him of the condition of the road, the .town would be liable. Doherty v. Waltham, 4 Gray, 596. Myers v. Springfield, 112 Mass. The fact that the defendant knew or had reason to know that the barriers had been constantly taken down and left down, was •competent and material, as bearing on the question whether the precautions taken were such as were required under the oircum stances to exclude travellers from the way. To the instruction given on this point the defendant has no ground of exception. Exceptions overruled.