Hayden v. Township of Bangor

Brooke, J. (after stating the facts). At the close of the evidence introduced on behalf of the plaintiff, a motion was made by defendant for a directed verdict [605] based on many grounds, and, among them, upon the ground that plaintiff’s decedent was guilty of contributory negligence as a matter of law. This motion was denied, and the case was submitted to the jury under a charge which is severely' criticised by counsel for plaintiff, and upon which many assignments of error are based. As to just what duty a municipality owes to the public in the maintenance of temporary ways outside the regular traveled portion of the highway, it is not necessary under the facts in this case to determine. We have read the evidence introduced on behalf of the plaintiff with care, and have reached the conclusion that the motion for a directed verdict made by defendant should have been granted upon the ground •that plaintiff’s decedent was guilty of contributory negligence as a matter of law. We are impelled to this conclusion by a consideration of the following facts. There had been in the vicinity of the scene of the accident an unusually severe rainfall, resulting in the carrying away of many bridges and culverts. The bridge over which plaintiff’s decedent passed had been completed on the evening of the 9th. He and his companions passing over it on the morning of the 10th were the first persons to use it. No roadway south' of the temporary bridge had been marked out, and one crossing it was notified to go in no particular direction. Plaintiff’s decedent was the third to cross the bridge. The one who first crossed it kept to the left in the field and was in a safe place; the second to cross it, Marshall, who was in the buggy, instead of likewise keeping to the left, turned abruptly to the right and attempted to cross the ditch in question and to regain the roadway at once. There was no invitation to cross at that point, and when choosing a new way common prudence would have imposed the duty on Marshall and his companion to satisfy them [606] selves of the reasonable safety of the way before using it. This they did not do, and in crossing were partially thrown and partially jumped from the rig in which they were riding. All this occurred in broad daylight immediately in front of plaintiff’s decedent. His own team when it approached the ditch in question hesitated, and without the slightest care for his own safety he urged them to cross. At the moment he was perched upon a narrow, slippery bolster, the top of which was faced with iron, only 31/2 inches .wide, with his feet resting upon the tongue' or hounds in front of him. With the ocular demonstration of what had happened immediately preceding his attempt to cross and the fact that Greenman’s team stood but a few feet to the left in a place of safety, we think that the plaintiff’s decedent’s conduct in the premises indicates such a reckless disregard for his own safety as to preclude plaintiff’s recovery. Inasmuch as for this reason a verdict should have been directed, it becomes unnecessary to consider any of the assignments of error upon which plaintiff relies. The judgment is affirmed. McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.