Willard v. Town of Newbury

The opinion of the court was delivered by Kellogg, J. Upon the trial in the court below, the court refused to instruct the jury in the manner requested by the defendant, and by reason of such refusal the case is brought here for the consideration of this court. These requests lead to an inquiry as to the duty and liability of the town to take and continue the necessary, measures to guard and protect the public against injury upon the road in question, while the rail road was being constructed at that place, and until the highway was restored to its former condition. That the road was a public highway is not controverted ; and consequently the town was bound by law to maintain it. It has, indeed, been said, that the grant to the rail road company, authorizing them to lay their track across the highway and to make all necessary excavations, was a virtual discontinuance of the highway at this place, and consequently that the town was relieved, as to that part of the road, of all responsibility. No authorities are produced, and it is believed that none are to be found, to sustain this position. It is quite evident, that a discontinuance of the road was not necessary [464] to the enjoyment of the rights secured to the rail road company, and that such discontinuance was never contemplated by the company, or the town. For the rail road company only found it necessary to cross the highway at this point; and although this might interrupt public travel, while the rail road track was being constructed, yet it would not amount to a discontinuance of the road. Such interruption, however, was but a temporary suspension of the use of the highway, and not a discontinuance of the road. It might as well be urged, that every highway, which is temporarily obstructed, so as to be impassable, or unsafe, is thereby discontinued. Inasmuch, then, as the road remained a public highway, the duty and obligation of the town continued, — not, however, to keep the road at this place passable at all times, for this might be impracticable, while the rail road was being constructed ; but we think the town was bound, during the interruption of the travel by the construction of the rail road, to see, that a suitable by-way was provided by the public, and to take all proper and reasonable precautions to guard them against passing upon the highway, while it remained unsafe by reason of the operations of the rail road company in the construction of their road. Equally untenable is the ground assumed by the defendants, that the obligations imposed upon the rail road company, by the charter, in the construction of their road across public highways, absolve the town from its duties and liabilities to the public. That duty still remains obligatory upon the town, so long as the road continues a public highway. This view is fully sustained by the case of Currier v. Lowell, 16 Pick. 170, which is almost identical with the case at bar; and with the law of that case we are entirely satisfied. It has been urged, that if the town is held liable to the plaintiff, it will do great injustice, inasmuch as it may deprive the defendants of all remedy against the rail road company. If this were true, it would be no sufficient reason for denying to. the plaintiff a right, clearly secured to him by law. If the law give the plaintiff a remedy for the injury he has sustained, against either the rail road company, or the town, at his election, the court have no power to deny him that right. If, however, the plaintiff’s remedy against the town were doubtful, and the remedy against the rail road company [465] unquestionable, the court might, perhaps, be justified in remitting the party to the latter remedy. But we entertain no such doubt. And we are inclined to think, the supposition, that, if the plaintiff recover of the town, the town will thereby be deprived of a remedy against the rail road company, is not well founded in law. In Lowell v. Boston & Lowell R. R. Co., which was a suit founded upon the provisions of a charter similar to the charter of the Pass. & Conn. Rivers Rail Road Co., and in a case very similar to the present, the town were held entitled to recover the amount, which they had been compelled to pay for an injury occasioned by the rail road company, by obstructing the highway in the construction of their rail road. 23 Pick. 24. This decision seems to us to be founded in reason, and is directly in point. But it has been urged in argument, that, upon the facts reported, the plaintiff is not entitled to recover. This depends upon whether the evidence discloses a want of ordinary care and diligence on the part of the town, to guard and protect the public against injury, resulting from the state and condition of the road. This was a question of fact, for the consideration of the jury, and which the jury have found in favor of the plaintiff. And this question, we think, was properly submitted to the jury, and under suitable instructions from the court below. Consequently their finding upon this question must be conclusive upon the parties. For it is obvious, the evidence tended to show, that the town were not using that reasonable care, which was necessary to warn the traveller of the unsafe condition of the road, and which, had they done, the injury now complained of would not have occurred. If the jury believed this evidence, (and doubtless they did,) it justifies their verdict. We discover no error in the judgment of the county court, and the same is therefore affirmed.