Bodah v. Town of Deer Creek

Marshall, J. The alleged defective highway was described as a graded way about forty rods long, not to exceed nine and one-half feet wide on the surface, with a ditch or gully about two and one-half feet deep on each, side, and no [511] guard or railing to prevent vehicles, wagons, or sleighs from leaving the surface and sliding into one of the side ditches. The allegation as to the occasion of the injury is, in substance, that as plaintiff was traveling on the highway with a team of horses and sleigh loaded with logs, on which he was standing, the sleigh, with its load, slued into the ditch on the south side of the road, whereby it was overturned,, causing the injuries complained of. There is no allegation that the alleged defective character of the road was the cause of the accident, or had any connection therewith. From the description of the highway, no other reasonable inference can be drawn than that it was an ordinary turnpike road, constructed, as they generally are, through low and flat lands in country districts. The reasonable inference is that the surface of the road, nine and one-half feet wide, sloped on each side to the bottom of a gully about two and one-half feet below such surface. That such an ordinary turnpike comes up to the standard of reasonable safety, which is the limit of duty due to travelers from the public corporation, will hardly admit of serious controversy. Moreover, there being no claim in the complaint that the alleged defective condition of the road caused the sleigh to slide into the ditch, clearly no cause of action is stated. As this court has often been called upon to say,, mere breach of a duty which one person owes to another respecting his personal safety, and an injury to such other,, do not constitute actionable negligence; there is still needed the element that the breach of duty, in a line of responsible causation, was the cause which produced the injury; and the facts in that regard must be alleged in the complaint,, established by evidence, and found by the jury, else there can be no recovery. It follows that the ruling of the trial court, sustaining the objection to any evidence under the complaint, was right, and the judgment appealed from must be affirmed. By the Oourt.— Judgment affirmed.