Mullen v. Town of Rutland

The opinion of the court was delivered by Redfield, J. The plaintiff seeks to recover damages for injuries to the wife by reason of an insufficient highway. The charge of the court was satisfactory except in one particular, to which the plaintiff excepted. The court charged the jury that “ if O ’Neil (the highway surveyor) fully discharged the duty of the town at the close of the day’s work, by way of precaution [80] against accident to travellers in the night time, the town is not responsible for this accident or liable in this case, although the barricade was rendered insufficient by accident or malicious interference afterwards.” The location and character of the highway, the frequency of travel, the necessity of lights to guard and guide the traveller, and of a strong, high and sufficient barrier or muniment, were carefully submitted to the jury by the court, without exception by the plaintiff. We think if the town performed its full duty and built a barricade at night-fall sufficient in hight and strength, and in the right place, and had no knowledge or reason to suppose or suspect that some unforseen casualty would happen to it, the town would not be liable. If by some accident or malicious interference the barricade had been broken down and a traveller thereby suffered injury, such incidents must have place with casualties and accidents. We find no error in the charge of the court. The judgment is affirmed.