Munson v. Town of Derby

''Carpenter, J. The plaintiff claimed that he sustained an injury in consequence of a defective highway in the town of Derby. The circumstances were these. The Housatonic Water Power Company, by virtue of authority conferred upon it by — 307 — its charter, changed a portion of a highway in the town about one-half mile in length, by making a new track or pathway near to, and nearly parallel with, the old track. This change was approved by the selectmen of the town. The Water Power Company opened a ditch about twenty feet deep completely across the bed or traveled part of the old highway. The old highway was more nearly in the line or direction in which the plaintiff was traveling than the new. At the point of divergence the road bed was in such a condition that a stranger, or one not well acquainted with the locality, would be quite as likely in the night season to take the old highway as the new. There was no railing or other indication that the old road was unsafe. The plaintiff passed over the road in company with another man on the morning before the accident happened, and that was the only evidence that he knew of the situation of the road. In returning, the same evening, the horse followed the line of the old highway, and thp plaintiff was precipitated into the ditch, whereby he was injured. The plaintiff obtained a verdict in the Court of Common Pleas, and the defendants move for a-new trial, on the ground of alleged errors in charging the jury, and in refusing to charge as requested. There are two counts in the declaration. The first alleges, in general terms and in the usual form, that the injury was received while traveling upon and along the public highway. The second alleges substantially the facts above stated. The verdict was for the plaintiff on the second count, and for the defendants on the first count. No question is made in this court as to contributory negligence in the plaintiff; but the question is, in general ternas, are the defendants liable under the circumstances above stated ? The court, in response to. a request made by the defendants’ counsel, charged the jury that the action was not founded on the 8th section of the statute, requiring the town to erect railings on the sides of bridges, and parts of the highway so made or raised above the adjoining ground as to endanger the safety of travelers; but was founded on the 6th section of the act, which provides that if any person shall — 308 — lose a limb, break a bone, or receive any bruise or bodily injury by reason of any defective bridge or road, the town whose duty it is to keep the road or bridge in repair, shall pay to the person so injured just damages. Was the then existing highway defective within the meaning of this statute ? It is not contended that there was any- structural defect, or want of proper repair, in the highway itself. There was therefore no danger to the plaintiff arising from the negligence of the defendants, so long as he' kept within the limits of the highway ; but the danger consisted in his being drawn, unwittingly, from the highway, and induced to travel in and along the route of the old, discontinued and dangerous highway. The case is a novel one in some of its aspects, and presents a question differing somewhat from any that has hitherto arisen in this state. 1. The defendants asked the court to charge the jury “ that if the acts of the water company in changing the road bed, were done according to the powers conferred upon them by their charter, and such changes in the road bed were in good faith and without fraud approved by the selectmen of the town, the defendants could not be liable in this action for an accident happening on a portion of the discontinued road, even though the jury should find that the selectmen erred in judgment in approving of such change.” The court charged the jury that the above claim was correct as applicable to the first count of the declaration, but did not otherwise so charge. We think this request was clearly inapplicable to the second count. That count does not base the liability of the defendants upon any error in judgment, or upon any negligence in respect to the condition of the bed of the old road at the precise spot where the accident happened; but the negligence consisted in leaving the new road without a sufficient guard to prevent travelers from going astray upon the old. 2. The defendants further requested the court to charge “ that the plaintiff must prove to the satisfaction of the jury that the precise place where the injury was received was a — 309 — public highway of the town of Derby,” which the court omitted to charge; “ and that the highway where the accident happened was defective and out of repair, by the fault aud negligence of the defendants, and that the plaintiff’s injury was caused by that defect.” The court charged the jury that it was not necessary in all cases that the place where the injury was received should be a part of a highway, but that the injury must have happened because the highway was out of repair and defective by the fault and negligence of the defendants, and that the plaintiff’s injury must have been caused by 'that defect. The objection to this part of the charge is, that it is not sufficiently specific, and was calculated to mislead the jury, unless limited by other proper instructions. There would be force in this objection if the charge in this respect stood alone. But considering this part of the charge in its application to the case in hand, and in connection with the charge of the coui’t in response to the defendants’ fourth request, as stated hereafter, in which the court carefully and properly applied the substance of the charge now under consideration to the circumstances of this case, we are of the opinion that the jury could not have been misled by it, and that the defendants have thereby sustained no injury. 3. The defendants further requested the court to charge, “ that towns are not obliged to fence their roads against adjoining land, or maintain any fence or railing on the sides of their highway, for the purpose of preventing injuries outside the limits of the highway, unless the sides of such parts of such highways are so made or raised above the adjoining ground as to endanger the safety of travelers; and that if the road bed of the new highway at the point of separation from the old or former highway in question, was not raised above the road bed of the old highway, the defendants were not bound by law to erect or maintain a railing or fence, and were not under any circumstances liable for injuries happening outside of the limits of the highway. The court charged the jury c< that towns are not ordinarily bound to fence or rail their highways, and are not generally liable for injuries received — 310 — outside the limits of the highway, but that under some circumstances towns might be liable for injuries received outside the limits of the highway, and that if the jury should find as' claimed by the plaintiff, that the new and the old road ran in the same general direction, and that the defendants had left the new highway at the point of separation from the' old without any guard or railing, and in such a condition as would be well calculated to mislead persons of ordinary prudence, and draw them from the new road into the old and unsafe road under the belief that they were still on the public highway, then there was nothing in the law to prevent a recovery, and that if the jury should so find, their verdict should be for the plaintiff on the second count; if they should not so find, then their verdict should be for the defendants on both counts.” The first part of this request, as a general proposition, is well enough. The latter part, which would seem to establish it as a rule precluding the possibility of any exception to it, is wrong. Again: the words “ railing” and “ fence,” as used in the 8th section of our statute, seem to imply a barrier of sufficient strength to prevent travelers, under ordinary circumstances, from going off a bridge or embankment. If the defendants? counsel used the words in that sense, we see no objection to the request, provided it had any application to the case; for we do not suppose it was necessary for the defendants to erect any such barrier at this place. A written or printed notice that the road was discontinued, brought home to the knowledge of a party who knowingly attempted to pass over the road, would have been sufficient. But if they meant by it, as we suppose they did, that the defendants were under no obligations, by means of a fence, railing, or otherwise, to inform the public that the old highway was discontinued and unsafe, then we think they were clearly wrong. And that brings us to consider this question, — was the want of such notice a defect in the new highway ? The object and purpose of the statute was to compel towns to keep their highways reasonably safe for travelers. The dangerous character of this highway, taken as a whole, can — 311 — admit of no question. Strangers, and others acquainted with the road as it was, but unaware of the change, passing over it in a dark night, would be almost certain to be drawn from the road, and to meet with an accident at the risk of life itself. The road was therefore unsafe. Was there any excuse for it ? The expense of some device whereby the public could have been effectually warned of the danger, would have been very slight. Can it be presumed that so great a danger, resulting probably in such serious consequences, and so easily guarded against, was not embraced in the mischief which the legislature intended to prevent ? The fact, upon which the defendants so much rely, that the place where the accident happened was from twenty to forty rods from the point of divergence of the two roads, and from two to five rods distant from the nearest point in the new highway, seems to us to be entitled to little or no weight. The danger did not materially depend upon the proximity of the ditch to the new highway, nor was it to any appreciable extent diminished by its distance from it. If, at certain times, the traveler gets upon the wrong road, the accident will be sure to happen unless prevented by some unexpected event. The road as it was therefore was a trap, and it was manifestly the duty of the town to use all reasonable precautions to prevent strangers, and the unwary, from being caught in it. It must be borne in mind that the question does not relate to the duty of towns to fence highways generally, or to use other precautions to prevent travelers from going astray. The jury were properly told that no such duty rested upon them. Ordinarily there can be no danger to the traveling public from the want of such a fence. But when the public, for a long time, have been accustomed to pass over a given piece of highway, and the same becomes impassable or dangerous from any cause, so that it is necessary to divert public travel therefrom, good sense, as well as common prudence and the dictates of humanity, requires that some means should be adopted whereby the public shall be effectually warned of the danger. That not having been done, the discontinuance was on paper merely. There was no real, actual discontin — 312 — nance. The old road was not closed, but was apparently an open, public highway still. A road cannot be discontinued by a mere vote. Something more is requisite. The public must be actually excluded therefrom. Until that is done the liability of the town, as to all persons without notice, remains the same. So in this case. Merely opening a new track and declaring the old track discontinued, was clearly insufficient. It was negligence in the selectmen to approve the' change and leave the two roads in that condition. A fence, or its equivalent, to keep the public from the old track, was essential. It was their duty to see not only that the new road was in proper condition, but that the two combined did not endanger the lives and property of those using the new. Failing in this was not merely an error in judgment, it was negligence; and the town is liable for the consequences of that negligence. The principle underlying this decision is not now established for the first time in this state. Towns are required to keep the limits of the highway outside of the traveled path reasonably free from objects which are calculated to frighten horses of ordinary gentleness. Dimock v. Town of Suffield, 30 Conn., 129; Hewison v. City of New Haven, 34 Conn., 136. If objects like these constitute defects in the highway, surely a highway so situated that travelers will be likely to be allured from it into dangerous paths, must be defective. The danger in the one case is as real as in the other. The case of Thorp v. Town of Brookfield, 36 Conn., 320, was in some respects like the present. A portion of a bridge had been carried away by a freshet, so that it was impassable. It was condemned, and the selectmen by means of a fence across the highway on both sides, attempted to turn the travel from it. The court held that they were guilty of negligence in' not continuing the barrier, so as effectually to warn the public of danger. See also City of Norwich v. Breed, 30 Conn., 535, where the same principle is distinctly recognized. A brief reference to some of the authorities in other states will show what the law is elsewhere. In Ireland v. The Oswego, Hannibal & Sterling Plank Road Company, 13 N. — 313 — York, 526, the facts were these. The defendants were authorized to use an existing highway for the construction of their road. In grading for the plank road the defendants, within the bounds of the former highway, excavated the earth so as to make a new track lower than the' former traveled-path.- The new track diverged from the traveled pathway of the former highway. The two tracks were on a level at the place where they separated,- and each was of sufficient width at that place to admit of traveling with a carriage; but the old pathway gradually became higher than the new track, and grew narrower until it came to a point at a place where it was elevated from two to three feet above the new track. The evidence tended to show that the plaintiff, driving along in the evening, kept the old path, and was thrown from his wagon and seriously injured. The Court of Appeals held that the defendants were liable. Denio, O. J., says: — “Where a road is so constructed or altered as to'present at one point two paths, both of which exhibit the appearance of having been used by travelers, and one of them leads to a dangerous precipice, while the other is quite safe, it is the duty of those having charge of the road to indicate, in a manner not to be mistaken by day or by night, that the unsafe path is to be avoided; and, if it cannot be otherwise done, to put up such an obstruction as will turn the traveler from the wrong track.” In Coggswell v. Inhabitants of Lexington, 4 Cushing, 307, it appeared that a post stood within the limits of the general course and direction of the travel, and made traveling dangerous ; but whether within or without the limits of the highway did not appear. The court held that the town was liable in either case, and that if the post was out of the limits of the highway, so that they could not lawfully remove it, it was their duty to place such a fence, or other barrier, between it and the road, as would have rendered the road safe. The same principle was recognized in Collins v. Inhabitants of Dorchester, 6 Cush., 396, and in Hoyden v. Inhabitants of Attleborough, 7 Gray, 338. The case of Davis v. Hill, 41 N. Hamp., 329, is an author — 314 — ity directly establishing the proposition that “ the want of a sufficient railing, barrier and protection to prevent travelers passing upon a highway from running into some dangerous excavation or pond, or against a wall, stones or other dangerous obstruction without its limits, but in the general direction of the travel thereon, may properly be alleged -as a defect in the highway itself.” The same doctrine is supported by Willey v. Portsmouth, 35 N. Hamp., 303. It is true the case now before us is not, in all respects, identical with these cases. The difference, however, consists mainly in the distance of the excavation from the new highway. We have endeavored to show that the matter of- distance was immaterial. If we are correct in this then the principle involved in all the cases is the same. Eor these reasons a majority of the court are satisfied that there should be no new trial. In this opinion Butler, C. J., Foster and Seymour, Js., concurred. Park, J., was of opinion that, as the plaintiff’s injury was owing wholly to his going astray from the public highway upon a road that had been legally discontinued in accordance with the provisions of the charter of the Housatonic Water Company, and was not connected in any manner with public travel upon a public highway, he could not recover. He regarded the cases hitherto decided, where towns have been held liable, as all cases of injury to persons traveling on the highway itself. And as confessedly towns are not liable any further than some statute imposes a liability, he considered it necessary to a liability on the part of the defendants that there should be some statute requiring tow;ns to erect fences or other barriers, or give public warning in some manner, to prevent travelers on public roads from going off the road to their injury; the statute requiring a railing to be erected by towns where the sides of the road are raised above the adjoining land having no application to a case like this, where the place of danger was remote from the highway itself.