Stoddard v. Inhabitants of Winchester

Allen, J. The softening of the earth in the road, under the influence of a heavy storm, appears to have been due to the digging of a trench for a water-pipe about six months previously to the time of the accident. The street had been used meanwhile, and there was no evidence that the earth had softened, or that any danger or defect existed, until within an hour of the plaintiff’s accident; and there was no claim that the town had notice, or might by the exercise of reasonable care and diligence have had notice, of the actual softening of the earth. Under these circumstances, we think the case should have been withdrawn from the jury. In order to hold a town responsible on the ground of implied notice of a defect in the road, there should be such a condition of things as fairly to indicate that there may at any time be danger in using the road. It is not necessary that roads should be built according to the highest standards of engineering; and the practical rule that must be adopted in order to impose liability in such cases is, that the condition of the road must be such that danger may reasonably be apprehended at any time, and therefore ought to he guarded against. See Rochefort v. Attleborough, ante, 140. The fact that a road is so constructed that it is not likely to keep in good condition for a great length of time, will not impose liability on the town which is bound to keep it in repair, unless the danger is so imminent that it can fairly be said to show a want of reasonable care and diligence to omit guarding against it at once. Such was not the present case. In the opinion of a majority of the court, the entry must be, Exceptions sustained.