Whitney v. Town of Essex

[274] Tlie opinion of the court was delivered by Barrett, J. The duty of towns in regard to highways is prescribed in § 1, ch. 25, G. S., thus: “ All highways and bridges within the bounds of any town shall be kept in good and sufficient repair at the expense of such town, at all seasons of the year.” The liability is imposed in § 41 of the same chapter. “ If any special damage shall happen to any person, his team, carriage or other property by means of the insufficiency or want of repairs of any highway or bridge,” &c. The exceptions state that “ the town of Essex had worked and kept in repair, on the whole length of said road a travelled track sufficiently wide and suitable for the passage of all travel, both vehicles and on foot; and that such travelled track was in good and sufficient repair at the time of the plaintiff’s alleged injury.” The accident to the plaintiff did not happen upon said travelled track, nor by reason of any defect in it, nor by reason of his being forced or misled from it. He went upon the foot path as matter of choice in passing from a store to a shed, both of which stood along on the line of said path; and, owing to the defective condition of some hay-scales located in the line of said path, he received the injury. The town had never done any thing in any way in respect to said foot path. The court assumed, as matter of law, from the fact of this long public use, that the town became chargeable with said foot path, as part of the highway. In this we think there was error. When the town had provided and kept in repair a travelled track sufficient and suitable for all purposes of travel by vehicles and on foot, it had discharged the duty prescribed by the statuteand if it is to be charged with something more, it must be in consequence of having assumed and undertaken to provide something more as part of said highway for the use of the public. The town was not, as matter of law, bound to provide more, upon the facts stated. It had no interest in the habit of persons departing from said track and walking close to the fences, and it had no right or authority to prevent them from so doing. It is the settled duty of the town not only to keep the track in good and sufficient repair for the purposes of public travel, but [275] equally 'its duty to keep the margins in a reasonably safe condition against injurious consequences of accidents, such as usually do, and are most likely to occur in the course of public travel. The injury in this case was not the result of any accident happening in travel-ling along the highway; but was of the same category as that in the case of Rice v. Montpelier. There may be cases in which the question of the sufficiency of the highway for public travel may involve the condition of the margin and side paths. In such cases that question, with all that is legitimately involved, should be submitted to the jury under proper instructions. But this is not such a case ; for it is found affirmatively that the travelled track was sufficiently wide and suitable for the passage of all travel, and that it was in good and sufficient repair at the time of the alleged injury. This case is also distinguishable from those cases in which towns have been held liable in respect to travelled tpacks so left as to mislead the traveller as to which is the lawful public highway. Of this class of cases Goodrich v. Colchester, Chit. Co. 1855 (not reported),is a strong type. There was no such misleading here, for the public highway was not accompanied by another similar track, but was a single travelled track, “ with a feasible foot path on the south edge somewhat travelled, leading along in front of said scales and round to the front of the store marked B while the foot path on which the plaintiff got his hurt was fifteen or twenty feet away from the road, and near to the fences of the residents, — with which path .the town had never any thing to do. We do not deem it best to discuss the question of right and liability as between the town and the owner of the scales in the present state of the case ; nor is it important to elaborate and exemplify further the views upon which we regard the charge to be erroneous. The judgment is reversed and case remanded.