Bliss v. Town of Whitingham

The opinion of the court was delivered by Royce, Ch. J. No question was made upon the trial but what the highway described in the notice that was put in evidence by the plaintiff was one that the defendant town was under obligation to keep in repair. The objections made to the notice are, that it does not sufficiently designate the place of the accident; nor sufficiently point out the respect or particular in which the highway was insufficient and out of repair. The place where the accident happened is described as being in said highway: “ about six feet southeasterly from the southeast corner of the Sadawga House, occupied as a hotel by Wm. L. Robinson & Son, in the village of Sadawga.” That description was sufficiently definite. It could not have been made more accurate except by the aid of actual measurement, which has never been required. In the description of the insufficiency of the highway, it is said: [176] “ that there were stones and sticks left in the travelled part of it in such a manner as to render it unsafe and out of repair.” This was as exact and particular a description of the defects complained of as has ever been regarded necessary. A great deal of confusion has resulted from the manner in which this cause was tried in the County Court. It appeared that there was a highway extending westerly from the one described in the notice ; and the obstruction which constituted the insufficiency complained of was near the junction of the two highways. The plaintiff claimed that the road extending westerly was a branch of the one described in the notice that had been adopted by the town ; and they were obliged to keep it in repair; and that if the obstruction should be found to have been in that highway the town would be liable. The question whether the town had adopted that highway was controverted. Some of the requests and a portion of the charge were predicated upon the supposition that the obstruction might be found to have been in that highway ; and what was said by the court upon that branch of the case was in explaining and defining the rights and liabilities of the parties if it should be so found. The verdict of the jury has rendered all that transpired in reference to that highway wholly immaterial. It is settled by that verdict that the obstruction was in the highway described in the notice. The case is to be considered and passed upon in this court as if no other highway had been in question but the one described in the notice. Hence all that portion of the arguments of the learned counsel and the charge of the court that has reference to the highway that it was claimed had become such by adoption, need not be considered. This view eliminates all of the defendant’s requests that he now claims were not complied with, except the 8th, which was, that Robinson, the occupant of the hotel, had the legal right to place the obstructions as they were placed, to protect his own property. The court charged that Robinson had the right to protect his piazza against being run on to by teams in a proper way ; and left it to the jury to say whether the way in which he undertook to protect it was proper or not. This was as far as the defendant was entitled to have the request complied [177] with. Exceptions were taken to the charge of the court in respect to the duty of the defendant to keep the place where the accident happened in repair. It is assumed in argument that that place was upon what would be termed the margin of the highway ; and conceding that it was upon the margin, we think the rule of law in defining the obligation of the town to keep it in repair, was correctly stated. It is said in the charge that the public had used the whole of the highway close up to the hotel; that the travelled way extended close up to the piazza of the hotel; and that it had been so used and enjoyed for so long a time that it had become the duty of the town to keep that margin in good and sufficient repair. The locality thus indicated included the place where the obstruction was found to have been ; and the presumption is, that that statement was warranted by conceded facts or uncontradicted evidence. The authorities cited are ample authority to sustain the charge upon such a state of facts. The judgment of the County Court is affirmed.