Hutchinson v. Town of Concord, 41 Vt. 271

Hutchinson v. Town of Concord

41 Vt. 271 | Vt. | 1868

The opinion of the court was delivered by

PecK, J.

The injury for which the plaintiff seeks to recover, was caused by being hit by a sled with which a boy was coasting upon the highway along which the plaintiff was walking, in the village of West Concord. It is stated in the exceptions, that The accident did not arise from any want of repair in the sur*273face of tbe highway, but did arise from the plaintiff’s being struck by the sled.” It is further stated that “ the plaintiff claimed that the town were liable because they had neglected to forbid coasting upon that street.” The proposition of the plaintiff’s counsel is that the town are liable by force of the statute subjecting towns to liability for any special damage which shall happen by means of the insufficiency, or want of repair, of highways and bridges. The case entirely negates the idea that the injury happened by means of any insufficiency, or want of repair, of the highway, unless the boy, while coasting with his sled, taken in connection with the culpable omission of the selectmen to forbid it, was an insufficiency, or want of repair, of the highway, within the meaning of the statute. It is difficult to construe the act of coasting on the highway, as an insufficiency of the highway itself, although it be in a locality where it is dangerous to the traveling public. The sufficiency or insufficiency of a highway, or its state of repair, has reference to its condition, and not to the manner in which a person travels it. It is claimed that the persons with their sleds in coasting, constitute physical obstructions which are insufficiencies, or want of repair, for which the town may be held liable, if a traveler is injured by contact with such obstructions. It is true that towns- may be liable for damages by obstructions placed in the highway by others without any agency of the town or its officers, such as a log, wood, timber, or stone, if the town negligently suffers such obstructions to remain, exposing the traveler to danger. But in such case the road, with such objects resting upon it, is thereby rendered insufficient or out of repair; and the town has the power to restore it to its proper condition by removing the obstructions which have been unlawfully placed there. But as to the boys with their sleds upon the road, it is quite different. It is not made unlawful by the statute, to travel upon the highway with such sleds, nor are the selectmen empowered to prohibit-it. The selectmen are only empowered to prohibit one mode of use of such sleds, or like vehicles, upon the highway; that is, coasting; and then only when and where, in their opinion, the traveling public is, or is likely to be, endangered by it. Thus the power given to the selectmen by this *274statute, does not extend to removing obstructions from tbe highway which are not unlawfully there, but merely to forbid persons, though lawfully upon the highway with sleds or other vehicles used in coasting, to use them in that manner. So • that the mere fact of the sled’s being on the highway, can not be said to be an. unlawful obstruction, whether coasting has been prohibited by the selectmen, or not; and the act of coasting with it can not constitute an insufficiency, or want of repair, within the statute, giving the right of action against towns. The power given to, and the duty imposed upon, the selectmen by the statute relating to coasting on the highway, do not pertain to the question of the sufficiency, or state of repair, of the highway, but to the conduct of persons while in the use of it; therefore the omission of duty by the selectmen can not make coasting an insufficiency, or want of repair. When this statute was passed, in 1859, it could not have been intended as altering the then existing law as to what would constitute a good and sufficient highway in good repair. This statute, when acted under by the selectmen, is in the nature of a police regulation to prevent a particular use of the highway which is deemed dangerous to travelers. It is of the same character as an ordinance against fast driving would be, if the selectmen were' authorized and required to pass such ordinances where the safety of persons required it. It is clear that an injury resulting to one by fast driving by another, could not be imputed to an insufficiency,, or want of repair, of the highway, and thus make the town chargeable, merely because the selectmen culpably neglected to make such ordinance. Nor can the town be made liable in this, case for the neglect of the selectmen to prohibit coasting on the street in question. As the injury to the- plaintiff was caused by the sled on which the boy was coasting or sliding, by which he was suddenly overtaken and forcibly struck, and was not in any way attributable to any insufficiency, or want of repair, of the highway, we see no ground upon which the town can be chargeable.

It is claimed in argument by the plaintiff’s counsel, that there is a mistake in the exceptions in stating that the plaintiff claimed that the town were liable because they had neglected to forbid *275coasting upon that street, and is insisted that tbe town are liable on the ground that the coasting, as stated in the case, was an insufficiency which renders the town liable, and that the town would be-liable even if the selectmen had seasonably prohibited coasting. We have given the plaintiff the full benefit of every legal ground in his favor presented by the evidence, without being confined to any particular ground of claim made in the county court, and we are all agreed that the ruling of the county court was right, and that,, upon the evidence in the case, there was nothing to be submitted to the jury.

Judgment affirmed.