Drew v. Town of Sutton

The opinion of the court was delivered by Rowell, J. The testimony of the witness Skinner must be taken the same as though he was not a physician, as he was not in professional attendance upon the plaintiff. But we think that what the plaintiff told him about having pain in his head and his neck not being able to support his head, had reference to his then present condition, and so admissible under our decisions. Nor do we think there was error in refusing to direct a verdict for the defendant, as requested. We think it was a question of fact for the jury to find, under all the circumstances, whether the road was sufficient or not. It is conceded that this is the general rule when the defect complained of is within the limits of the way, but contended that when no such defect exists, towns are not legally bound to guard the traveller from receiving injury beyond the limits by reason of steep banks, precipices, and the like, although in dangerous proximity to the way. Many things may constitute insufficiencies in highways; and the lack of railings or other muniments, when necessary to the safety of the travel, is a very frequent defect. It was the duty of towns to keep their roads in a reasonable state of repair, not only in their “ surface and margins,” but in their “ muniments ” as well. Glidden v. Reading, 38 Vt. 52. Besides, they were bound to construct and maintain their roads reasonably sufficient with reference to such accidents as might be expected occasionally to occur upon them. Lindsey v. Danville, 45 Vt. 72. It was further their duty to keep their roads reasonably safe for travel by night as well as by day; and the public had a right to presume that they were so. Pierpoint, O. J., in Bagley v. Ludlow, 41 Vt. 434. If a railing is lacking where one is necessary to the safety of travellers, the travelled way itself is thereby rendered unsafe and out of repair. And it makes no difference whether this necessity for a railing is [590] created by the condition of things within the limits of the way or without the limits, but in dangerous proximity to the way. In either case the question'is, Does the safety of the traveller require a raiilng ? Is the road reasonably safe and sufficient without one ? In this case the insufficiency complained of is the lack of a railing or other muniment to guard against the steep bank that came within about six inches of the westerly limit of the highway, the surface of the ground at this point being smooth and level to the very brink, not affording even the obstruction of a ditch or a rough margin to warn the traveller that he is out of the road. This is in no just sense a case of voluntary departure nor of straying from the way, like many of the cases relied upon by the defendant, and the law of those cases is not applicable. It cannot be said, as argued, that the plaintiff “ intended the act he did, though- he did not intend the consequences.” He intended neither. The case affords no warrant for saying that he did. By reason of the darkness he could not see where he was going, and accidentally drove off the bank. That is the case. Now suppose we adopt the defendant’s contention, that the defect must exist in the way, not beyond its limits, in order to render the town liable. That, again, is this case ; for the lack of a railing, which the jury has said was necessary, was a defect in the way itself. Hayden v. Attleboro, 7 Gray, 338. In that case the injury arose from being precipitated into a cellar that was either within the limits of the way or in such close proximity thereto as to render travelling along the way dangerous. The defect complained of was the want of a railing. The court said that the want of a railing necessary to the safety of travellers was a defect in the way itself, for which the town was liable. In Coggswell v. Lexington, 4 Cush. 307, the injury was occasioned by a post outside the way as located. The court, not deciding whether the town had the right as against the owner of the land on which the post stood to enter and remove it, said “ it clearly had the right, and it was its duty, if it could not lawfully remove the post, to place such a fence or other barrier between it and the road as would have rendered the road safe.” The law of Massachusetts on this subject is tersely stated by Gray, C. J.,in the recent [591] case of Puffer v. Orange, 122 Mass. 389. “ A town is bound to erect barriers or railings, where a dangerous place is in such close proximity to the highway as to make travelling on the highway unsafe. But it is not bound to do so, to prevent travellers from straying from the highway, although there is a dangerous place at some distance from the highway which they may reach by so straying.” In Warner v. Holyoke, 112 Mass. 362, the court says : “ The law has nowhere undertaken to define at what distance in feet and inches a dangerous place must be from the highway in order to cease to be in close proximity to it. It must necessarily be a practicable question, to be decided by the good sense and experience of the jury.” It seems to us that this is the only practical rule that can be adopted; and that, as a general rule, it is for the jury to say, in the concrete case, whether the place is sufficiently near the highway to render travelling upon it unsafe unless guarded against, and that, as said in Adams v. Natick, 13 Allen, 432, this “ must be determined by the character of the place or object between which and the traveled road it is claimed that the barrier should be interposed.” As said by Hoar, J., in Alger v. Lowell, 3 Allen, 405: “The true test is, not whether the dangerous place is outside of the way, or whether some small strip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveller, using ordinary care in passing along the street, being thrown or falling into the dangerous place that a railing is requisite to make the way itself safe and convenient.” Nor do we think the Massachusetts doctrine is based on any peculiar wording of their statute, which provides that “ highways . . . shall be kept in repair, ... so that the same may be reasonably safe and convenient for travellers.” Pub. Sts. c. 52, s. 1. Our statute provides that highways shall “ be kept in good and sufficient repair,” so that, as this court has always in effect said, “ the same may be reasonably safe and convenient for travellers.” The Maine cases relied upon by the defendant are not opposed to the Massachusetts cases. In Willey v. Ellsworth, 64 Me. 57, it is said in the head-note, that “ when a railing is necessary for [592] the safety of travellers, the want of such a railing is a defect in the way for which the town is responsible ” ; and Hayden v. Attleboro and Coggswell v. Lexington are cited and commented upon approvingly by the court. But the real question in that case was one of variance. The defect complained of was a snowdrift in the highway, as alleged in the declaration ; but the plaintiff was allowed to prove the existence of a snow-drift without the located limits of the highway, and to recover damage resulting therefrom. The court said that proof of a snow-drift without the highway in no way proved or tended to prove the allegations in the declaration ; that the verdict was obviously for a defect not mentioned in the declaration, for th at alleged a drift in the highway ; that the only possible defect in the highway was that there was no barrier to prevent travellers from going out of the road, but that no such defect was alleged. An examination of Doyle v. Vinalhaven, 66 Me. 348, Blake v. Newfield, 68 Me. 365, and other Maine cases, will show, we think, that the Massachusetts doctrine on this subject is adopted there. It is also adopted in New Hampshire. Willey v. Portsmouth, 35 N. H. 303. But we do not mean to be understood as sanctioning the doctrine that towns were bound to erect railings merely to keep travellers from straying out of the highway, where there was no unsafe place in dangerous proximity thereto. On the contrary we would require the party to show that the defect that caused the injury existed either in the highway or so contiguous thereto, as to make it dangerous to travel on the highway itself. Nor does this doctrine run counter to any case in this State. ' It was in nowise involved in Page v. Weathersfield, 13 Vt. 424. The only question decided there was, that “ no action can be maintained against a town for an injury happening on a road or way opened by private individuals on their own land for their private use, although it has been travelled for a great number of years, if no act of the owners and the selectmen of the town has ever been done, recognizing it as a public road.” Sykes v. Pawlet, 43 Vt. 446, is not analogous. It was a case of voluntary departure from the highway for the purpose of driving under a private shed be'yond its limits, in getting out of which, plaintiff [593] backed bis team over an unguarded bank. In Brown v. Fairhaven and Westhaven, 47 Vt. 386, the defective way was not in the defendant towns, but in the State of New York, and' therefore it was held that the statute was not broad enough to charge them with liability. Judgment affirmed.