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RECENT AMERICAN DECISIONS.

Supreme Court of Vermont- November Term 1868.

SAMUEL MORSE AND WIFE 0. TOWN OF RICIIMOND.

Towns owe a statutory duty to travellers, for the breach of which the party injured may maintain an action, to remove from the margins of their highways objects unlawfully deposited there, which, by their frightful appearance, make it unsafe to travel the road with ordinary horses.

The duty of the town to remove the obstruction from the highway does not attach until they know of it, or ought to know of it, nor while it is upon the highway a reasonable time for the purposes of transportation over it.

Though a town is not bound to work the whole width of the road where the travel does not require it, yet they have a right to control the whole width and have a corresponding duty. If they suffer objects to remain deposited on the margin which, by their frightful appearance, make the whole road unsafe, they will be liable for such accidents by fright as are the natural result of their neglect.

Towns are held to a higher responsibility with reference to removing deposits of private property which are placed on the road without right and obstruct public travel by their frightful appearance, than with reference to removing equally dangerous objects which either are incident to the nature of the soil and country or are thrown upon the margin in process of constructing the road.

The defendants excepted to the ruling of the court that if the bales of hay deposited without right by a railway company upon the margin of the defendants' highway presented such an appearance that they might reasonably be expected to and naturally would frighten ordinary horses, and the plaintiff's injury occurred by such fright, the defendant town would be liable, the plaintiff's case in all other respects being first made out, although the surface and width of the travelled path were faultless. Held, that there was no error.

Distinction between highway laws of Vermont and Massachusetts.

This was an action of trespass on the case for injuries alleged to have been sustained by the plaintiff's wife, by reason of defects and insufficiencies in a certain highway in said town of Richmond, which the defendants were bound to repair.

On trial the plaintiff proved that on June 15th, 1864, a freight train, about 7 or 8 o'clock in the morning, came up on the Vermont Central Railroad, and one of the cars loaded with bales of hay was on fire; that to extinguish said fire the railroad employees unloaded said hay on the depot grounds, and scattered some bales over the depot grounds, and some of said bales, partially charred, were, for the purpose of preventing their consumption and further spread of said fire, thrown into the lines of the highway where the injury happened, and close to the principal travelled track, and

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were by the defendants suffered so to remain within the lines of the said highway, and close to the said travelled track, and for several hours after one of the Selectmen of said town had notice thereof, and until after the injury took place.

Evidence was introduced to prove that where said bales of hay lay the road was a good, perfect, smooth, and level road, fit and safe for travel in all its parts, more than fifty feet in width, from the place where any of said bales of hay lay, to some buildings on the opposite side of said road, and that teams in passing this place were not confined to any particular path, but travelled at the pleasure of the driver over a space of 40 feet in width or more in said road, although the greater part of the travel at that point generally passed near to where said bales of hay were lying at the time of the accident.

The defendant requested the court to charge the jury that although some of said bales of hay might have been within the lines of the highway, and might by their so being there have frightened the horse, and thereby have caused the injury, yet if they further found that, at the place where said bales of hay lay, and at the time when said injury happened, the road was in all other respects made of sufficient width, smooth and level for the safety of travellers and their teams in passing, and was not in any respect insufficient or out of repair at the place aforesaid, otherwise than that, by said bales of hay lying within the lines of said highway, as aforesaid, horses might take fright, then the plaintiffs are not entitled to recover.

But the court refused so to charge, and thereupon the defendants excepted not only to the refusal, but also to the charge given, which is sufficiently recited in the opinion.

Section 41 of Chapter 25 of the General Statutes provides that “If any special damage shall happen to any person, his team, carriage, or other property, by means of the insufficiency or want of repairs of any highway,” the person sustaining such damage shall have a right to recover the same in an action on the case, &c.

J. French and E. R. Hard, for plaintiff, cited Kelsey v. Glover, 15 Vt. 708; 18 Maine 286; Cassidy v. Stockbridge, 21 Vt. 391 ; Willard.v. Newbury, 22 Vt. 458; Batty v. Duxbury, 24 Vt. 168; Barton and Wife v. Montpelier, 30 Vt. 650; See also, Angell on Highways, $S 259, 261, 262; Winship v. Enfield, 42 N. H. 197; Chamberlin v. Enfield, 43 N. H. 356; Littleton v. Richardson, 32 N. II. 59; Dimmock v. Suffield, 30 Conn. 129; Keith v. Easton, 2 Allen 552; Kidder v. Dunstable, 7 Gray 104; Vinal v. Dorchester, 7 Gray 421; Howard v. N. Bridgewater, 16 Pick. 189.

J. Maeck and S. H. Davis, for defendant, cited Hixon v. Lovell, 13 Gray 59; Smith v. Wendell, 7 Cush. 498; l'inal v. Dorchester, 7 Gray 421; Shephardson v. Coleraine, 13 Met. 55; Howard v. N. Bridgewater, 16 Pick. 9, 189; Kellogg v. Northampton, 4 Gray 65; Davis v. Dudley, 4 Allen 557; Marble v. Worcester, 4 Gray 395; Dickey v. M. Tel. Co., 46 Maine 483; Farnham v. Concord, 2 N. H. 393; Holley v. W. T. P. Co., 1 Aikin 74; Glidden v. Reading, 39 Vt.; Cassidy v. Stockbridge, 21 Vt. 391; Kelsey v. Glover, 15 Vt. ; Sessions v. Newport, 23 Vt. 708; Kingsbury v. Dedham, 7 Am. Law Reg. 61; Felch v. Gilman, 22 Vt. 38; People v. Utica J. Co., 15 Johns. 358; Griswold v. Nat. Ins. Co., 3 Cowen 89.

STEELE, J.—This cause has been three times argued. We understand from the case, as well as from the statement of the defendants' counsel at the first argument, that so far as the liability of the town might depend on the length of time that the bales of hay had been suffered to lie upon the highway, or upon proper notice to the town officers that they were there, the rulings of the County Court were such that the defendants took no exception. The case, therefore, stands in this court on precisely the same ground that it would if it were conceded that the hay, which had been unlawfully deposited by the railway company upon the margin of the public highway, had been suffered to remain there an unreasonable time with the full knowledge of the officers of the town. No question arises in this court upon the plaintiffs' prudence. The only exception reserved is made to the pro forma ruling of the County Court, that even though the surface and width of the travelled track were faultless, and the bales of hay were outside that track upon the highway margin, still the town would—“ the case in all other respects being made out”—be liable if the bales of hay “presented such an appearauce that they might reasonably be expected to, and naturally would, frighten ordinary horses,” and the injury happened by reason of the plaintiffs' horse taking fright at them. The points relied on by the defence are, first, that the bales of hay were upon the margin of the roari;

and, secondly, that the accident was occasioned by fright at them and not by collision with them. The case fairly presents the mere question, whether towns owe a statutory duty to travellers, for the breach of which the party suffering special damage may maintain an action, to remove from the margins of their highways objects unlawfully deposited there, which, by their frightful appearance, make it unsafe to travel the road with ordinary horses?

I. Does the fact that the hay lay upon the margin instead of the path of the highway alter the rule of liability ? If a town

may be liable for a failure to remove an object unlawfully deposited upon the travelled track, for the reason that it obstructs travel by its frightful appearance, and thus renders the road unsafe, they must be equally liable when the object lies upon the margin, and naturally produces—as the jury under the charge have found it did in this case--precisely the same result. The result produced is, that the wrought path cannot be safely used by travellers. The cause which produces the result is an unlawful deposit of private property within the lines of the highway under the control of the town. If towns are bound to regulate their conduct with any reference to security from fright, less cannot be required of them than the removal of such obstructions as were complained of in this case, from any part of the highway, when their effect is to make the whole of it unsafe. This, of course, is said with the qualification that the duty does not attach until the town know of the obstruction, or ought to know of it. Nor would it attach while the property is lying upon the highway a reasonable time in loading or unloading, or for the ordinary purposes of transportation. It is true that towns are not bound, where it is unnecessary, to work the whole width of the highway, and if a traveller voluntarily leaves the path to travel upon the margin, he

does so at his own risk: Rice v. Montpelier, 19 Vt. 470. But ? towns have a right to control the whole width of the road, and

they have a corresponding duty. It is not necessarily a good defence to a claim for damages that they were incurred by reason of an obstruction upon the margin. On the contrary, it is well settled that it is the duty of towns to forbid and prevent the use of their highway margins as places of deposit for private property, whether it be lumber, shingles, logs, or other matter that may interfere with travel; and if they do negligently suffer the margins of their roads to become and remain unsafe by being thus

encumbered, the party who, without fault on his part, meets with an accident by driving against them, may recover of the town. Among the numerous cases recognising this doctrine are Cassidy v. Stockbridge, 21 Vt. 391; Snow v. Adams, 1 Cush. 443.

Nor does it alter the case that the party injured may sustain an action against the person who placed the nuisance upon the highway. It is the right of the party to proceed against the town if they are in fault, and the town may, if held to damages, look to the individual who obstructed the highway. See Newbury v. Pass. R. R. Co., 25 Vt. 377, and Willard v. Newbury, 22 Id. 458. Assuming, then, that towns by such a neglect may become, as has always been held, liable to travellers who from some unforeseen cause, not their own fault, diverge from the travelled track and meet with damage by collision with the obstruction, it follows that towns would still more clearly be liable when such objects occasion damage to the traveller who does not diverge from the accustomed path but uses the road in the ordinary manner, provided towns may be liable at all for an injury occasioned by fright. When the margin of the highway is encumbered by an obstruction, and the obstruction is frightful in its appearance, only the exceptional individual who leaves the path incurs the danger of accident by collision, while everybody who travels any part of the road confronts the danger of accident by fright. It is very manifest that the error of the County Court, if any, does not lie in the fact that the hay was upon the margin instead of the travelled path. The question must simplify itself to an inquiry whether a town may be liable for such accidents by fright as are the natural consequence of the obstruction they suffer to remain on the road.

II. In examining this second question—whether towns are bound to remove obstructions deposited upon their roads when their natural operation is to occasion accidents by fright in using ordinary horses—we must, as in all questions upon a statutory liability, have recourse to the statute and gather its meaning, as

can, from its language, its reason, and purpose; from the light shed upon it by the other statutory provisions relating to the same general subject, and by the judicial interpretation it has received. The statute in terms requires towns to keep their highways in “good and sufficient repair," and makes them liable for special damages sustained by reason of their “insufficiency or want of

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