Mochler v. Town of Shaftsbury

The opinion of the court was delivered by Royce, J. Cases have frequently arisen involving the question of the liability of towns for injuries resulting to parties in passing teams traveling in an opposite direction, but this is the first case that has come to our knowledge, where the question has been made as to their liability for an injury happening to a party in consequence of his passing a team going in the same direction. It has not been claimed but that the rule laid down by the court, that it was the duty of the town to keep this highway in good and sufficient repair for all travel in the night-time as well as in the daytime, was the correct rule. Neither has it been claimed that if the injury had been occasioned by the attempt of the plaintiff to pass a team coming in an opposite direction, but that the charge of the court would have been properly applicable and unexceptionable. But the defendant claims, that inasmuch as the team which the plaintiff attempted to pass, was going in the same direction, if he voluntarily turned out of the traveled track without any necessity therefor, but for the purpose of keeping company with the horse and carriage ahead, and thereby sustained the injuries complained of, and would not have sustained any injury had he followed the traveled track, he could not recover. The court charged that it was the duty of the town to keep the highway in good and sufficient repair for the meeting and passing of teams, such as it might reasonably be expected the highway would be used for, and to keep such places as would naturally invite travelers to pass over them for the purpose of passing other travelers, reasonably safe for that purpose. That if the highway at this place was insufficient in respect to the width of the traveled [586] track and the smooth place above the bank, and the situation of the road there was such as to lead the plaintiff to think that it was a safe place to pass, and if he used common care and prudence in undertaking to pass the team, and was injured by means of the insufficiency of- the highway, without the want of ordinary care on his part, he was entitled to recover. If towns are under any statutory duty to provide for the safety of travelers in passing teams going in the same direction, by keeping places which naturally invite the attempt, in good and sufficient repair, there was no error in the charge. But if towns owe no such duty, there was error, and the request of the defendant should have been complied with. An attempt has been made to bring this case within the rule laid down in Rice v. Montpelier, 19 Vt. 470. In that case, the road against the place of the injury, was smooth and well made, and from twenty to thirty feet wide, and the injury did not occur from any defect in the traveled part of the road, but from a hole dug by an individual in the ditch, three feet from the outer edge of the traveled .track. The plaintiff, for no apparent reason, except to get on to the snow, passed along in the ditch, and his horse ran into the hole, and the question was, whether the town, under such a state of facts, was liable, and the court held it was not. If the same facts had appeared in this case as to the width of the traveled track, the plaintiff, under the charge of the court, could not have recovered. For the charge predicates the right of recovery upon the insufficiency of the highway in respect to the width of the traveled track, and the jury must have found this fact in favor of the plaintiff. There are cases where it is absolutely necessary for the ti-aveler to pass teams go- ' ing in the same direction. The whole object and purpose of his journey may be frustrated unless he is enabled to do so ; and the statutory duty of the town requires that its highways should be so constructed and kept as to enable him, with the exercise of ordinary care, to do so. This is one of the kinds of travel which thé town might reasonably expect the highway would be used for. In this case there was no absolute necessity shown for the plaintiff to pass the team. He was influenced by the desire to keep in the company of the party with whom he had been traveling, [587] and to make more rapid progress. But we do not think the obligation of towns is limited to cases of absolute necessity, and that the charge of the court furnishes the just criterion of liability. It imposes no new or onerous duty upon towns; for they can always protect themselves from liability, by constructing their highways of such width as to permit the passing of teams without deviating from the traveled track; and if the traveler is wanting in common care and prudence, either as to the time, place, or manner of passing, the town is not liable. Judgment affirmed.