| Mass. | Oct 25, 1890
We have assumed that the word “ traveller,” which is found in the statute, is not there used in any narrow or restricted sense, and that the highway is to be kept safe and convenient for all persons having occasion to pass over while engaged in any of the pursuits or duties of life. Blodgett v. Boston, 8 Allen, 237. If, therefore, the plaintiff was using that' portion of the highway which the defendant town was bound to keep in repair to aid his servant, who, while executing his orders, had fallen into the brook, he was doing so lawfully, and if
If, in travelling near the edge of a way, there might, be danger of being precipitated down an embankment, or into the water, and a railing or other barrier would be necessary to make travelling thereon safe, but the absence of such barrier in no manner contributed to the accident, and the existence of it would not have prevented the injury, the town would not be responsible by reason of its absence. Palmer v. Andover, 2 Cush. 600.
As the defendant is not bound to keep the whole limits of the way, or locality, in repair, but only so much as is needed to accommodate the travel, if a traveller voluntarily leaves the reasonable limits set apart for travel for his own purposes, however laudable, he does not become entitled to the rights of a traveller in the portion of the way outside those limits, and cannot maintain an action for the injury which he sustains on account of defects therein. In the case at bar, the plaintiff, according to his own testimony, was acquainted with the bridge over the stream by falling from which the injury to him was occasioned. It was a culvert or bridge covered with gravel, with faced abutments. The abutments extended two feet beyond and outside of the rails which marked the travelled part, and it was twenty-one feet between the rails. The plaintiff, who was conducting a drove of cattle, and who had himself passed over this bridge, became anxious lest a boy in his employ (whom he had sent back to prevent some of the cattle from straying homewards) had fallen into the water, and returned to look for him, and,, if necessary, to help him. He knew of the existence of the
With this evidence the plaintiff could not be held to be a traveller, in the use he was making of the highway outside of the travelled limits, to whom the defendant was to be held responsible if it had failed to make the way there safe and convenient for his use. Whether the rail was down or up was immaterial, if the plaintiff knew that he had passed outside those limits. He had not been betrayed into leaving the travelled part by any failure to find the rail where it should have been to protect him from approaching too near the edge of the abutment which it was intended to guard. He had voluntarily determined to pass out of the way as prepared for travel, and to assume the risk of approaching the unguarded embankment, for the edge of which he was feeling with his foot. If he did this in his anxiety for the safety of the boy, however creditable his motive, he did so at his own risk, and not at that of the defendant. The defect in the rail, if one existed, did not contribute to his injury, and no such case is presented as would be afforded if, by reason of its absence, he had approached the abutment unaware of the danger. His injury was occasioned by his consciously leaving the travelled path to encounter a danger outside of and beyond it. The town has done the duty imposed on it by statute when
Apparently, the case was submitted to the jury upon the charge of the learned judge who presided only as to the question whether the plaintiff, in what he did or attempted to do for the rescue of the boy, acted with reasonable prudence and discretion, without any reference to the inquiry whether in what he did he was consciously acting outside of the travelled limits of the highway. It was said that, if what he did “ occurred in connection with the use of the highway for the purpose of travel, — was natural and reasonable and incident to that use,” the plaintiff proposing to resume his journey, it was competent for the jury to find that the plaintiff was a traveller, and as such entitled • to the protection which the statute provides. This instruction disregards the fact testified to by the plaintiff, that he knew he was outside of the rail which marked the travelled way, and would impose upon towns a responsibility for the condition of their roads outside their travelled limits, if any transaction there occurs connected with or incident to the use of the highway which is in any way affected by the imperfection of that external condition. It would make towns responsible for injuries incurred in attempting to enter upon or leave the travelled way, if the conduct of the person doing so was reasonably careful, as such a transaction would be connected with the use of the highway, and incident thereto. This has been often decided to be otherwise. Tisdale v. Norton, 8 Met. 388. Shepardson v. Colerain, 13 Met. 55. Smith v. Wendell, 7 Cush. 498.
The liability of towns for defects in the highway is statutory. They are not liable for defects in the highway not within the travelled path, and not so connected therewith that they affect the safety and convenience of those using it. If the traveller’s horse strays by accident from the travelled path, that being safe and convenient, and he pursues him beyond those limits in order to resume and continue his journey, he must do so at his own peril. The same rule must apply where the companion or servant of the traveller has wandered beyond those limits. If, in order to relieve or rescue him, the traveller also passes beyond,
We have considered the case solely upon the evidence of the plaintiff, which was to some extent controlled by that of others; but upon that he was not, in our opinion, entitled to recover.
Exceptions sustained.