Lead Opinion
Opinions were delivered by each of the judges, as follows.
If this action can be maintained, (going upon the ground that the intestate was in the exercise of ordinary care, at the time of the accident,) it must be, I apprehend, either because the fordway in question became a part of the highway, which the town was bound to repair, or else because of their neglect to rebuild
To constitute a highway by dedication, which the town are bound to repair, there must be a dedication of the land by the owner, and an acceptance of the dedication by the town; otherwise it would be in the power of an individual to impose upon a town a liability to make and keep in repair a road, nolens, volens. As has already been said, before a town can be made liable, the road must have been opened for travel, either according to the statute, or else, in the case of a dedication, by acquiescence and adoption, as was held in Blodgett v. Town of Royalton,
In Estes v. Troy, 5 Green, 368, a user of a road by the town for ten yeárs, it was held, would not oblige them to repair it, and in Curtis v. Hoyt,
The duties of the highway surveyor are pointed out by statute, and he is simply to repair the highways in his district, and he has no power to lay out new highways, or adopt roads or by-ways already travelled as public highways, and, in this way, impose upon the town the duty of keeping them in repair; and, indeed, the referee does not attempt to find that there was, as matter of fact, an adoption of this fordway, as a part of the highway, by the town or its authorized agents, and certainly no such fact can be inferred from the facts, as reported by him.
Though this fordway had been used at certain times before the bridge, which went off in 1850, was built, and though the stream had been drawn out for that purpose, yet there was no showing by whom it was done. There was no pretence of a dedication of the land, and certainly there could be no implied consent on the part of the town to adopt it as a highway, and, besides, the use of it had been for a long time abandoned. All that can be said is, the landholder had permitted the fordway to be used by the public for the time being.
The question then arises, should the town be made responsible because of their neglect to rebuild the bridge within a reasonable time or because of their omission to build a safe fordway. We will consider these inquiries separately; and first, as to the neglect of the town to rebuild the bridge. It may be admitted that the death of the intestate resulted indirectly from the want of a proper bridge, but this was not proximate cause of it. If the town were liable for damages, at common law, for defects in a highway or a bridge which they were bound to keep in repair, the case would indeed be widely different. The principle that if one individual sustains damage from the neglect of another, the latter must be responsible to the former, would then apply; and it would be no answer to say the damages were consequential. The same rule might be applied to a private corporation created for their own benefit. But a town or other municipal corporation, created for the purposes of government are not subjected to the same rule, and no private action will lie against them, at common law, for a neglect of duty, though an individual suffers damage. Brookes, Abr. Title, Action on the case, pi. 93. Russell et al. v. Men of Devon, 2 Term 667. Mower v. Leicester,
This, then, being an action given by statute, we must look to the statute to see its extent. The language is, “ if any special damage “ shall happen to any person, his team, carriage or other property “ by means of the insufficiency or want of repair of any highway
It is upon this principle that the party injured is held to the use of ordinary care, to entitle him to recover. The intestate went without the highway because the bridge was gone ; but the injury arose directly because of his attempt to pass the fordway. The bridge being gone, was the remote or primary cause of the injury; his travelling the fordway the proximate cause. See Trow v. Vt. Central R. Co.,
It remains to be seen, whether, upon principle, this action can be sustained, because the town neglected to open and make a safe fordway. If this injury had been caused purely from the ordinary height and force of the water, it would hardly be claimed that the town was liable because they had not built a temporary bridge ;
If this action can, upon this ground, be maintained, it is because the selectmen of the town neglected an official duty. But official neglect of the agents of a municipal corporation as a town is not to be redressed by private action, unless given by some statute. The statute gives a private action for not keeping the road in repair already opened, not for neglect in opening a road. The two things are quite different.
I apprehend that the intestate had no legal right to pass the fordway, which he could assert even against the landholder. The traveller on a highway, when obstructed by some sudden and temporary cause, may, from necessity, pass upon the adjoining land without being a trespasser ; but it is a non sequitur, that the town, even in that case, would be liable for a defect in the road he chose to travel. See Taylor v. Whitehead, Doug. 745; Bullard v. Harrison, 4 M. & S. 392. 4 Law Lib. 50. Dane Abr. 258. Tisdale v. Norton,
The case of Willard v. Newbury, in the 22d of Vt., and of Batty . T. Duxbury, in the 24th of Vt., are much relied upon by counsel, in support of this action; but both are distinguishable from the case at bar. In each, the obstruction of the highway was caused by the action of the railroad company, by their occupying the highway for the construction of their railroad, under the authority of the legislature of this state; and the case of Willard v. New-bury, has but little bearing upon the present case. In that case, the company had laid their road across the highway, and in building an arch for the highway to pass over the railroad, they had obstructed the highway with blocks of granite, and the injury happened to the plaintiff while travelling the old highway; andthg jury had found, that the town were wanting in ordinary^ag^pmjiíí keeping up bars or railing, to warn people of the da*'-— — elling the old road; — the accident happening, in tq night time.
When it was once settled that the town was liabllj and the negligence of the railroad company, it followed^ that that action was well brought. What may have ' the learned judge who gave that opinion, beyond the casej Sumo? be treated as authority. What should have been the result, had the injury happened on a by-way, was a point not before the court, and not decided.
The case of Batty v. Duxbury,
Though the case shows that the new road had not been accepted by the select-men of the town, in point of fact, nor by the commissioners, yet the town had suffered it to be used by the public, as a public road, for some six months, without any caveat on their part; and this, taken in connection with the fact that the railroad com
The railroad company had made this road for the sole purpose of its being used, as a public highway, and to be accepted of them, by the town, as such; and as it was in fact used as such, by their consent and permission, as the case must necessarily imply, and was the only means by which the old highway could be used, as a road of travel, it is quite clear that it must be taken; that the railroad company acquiesced in this road being opened for travel, as a substitute for the old road, and such as they were bound to make for the public; and it is a question whether their acquiescence may not be regarded as the acquiescence of the town, so far as the public are concerned, and binding upon the town, and that the public should not be called upon to discriminate between the acts of the railroad company and the acts of the town, in relation to the making and opening this road, as a road for public travel.
If this is so, then the fact that the town themselves had never done any act to recognize this new road as a part of the public highway, could have been of no avail; and in the case of Mathews v. Winooski Turnpike Company,
The Winooski Turnpike Company had, in the case of Mathews, clearly acquiesced in the alteration of their road, as made by the railroad company. They used it as a part of their road, for which they took toll, and repaired it; and the jury under the charge of the county court had found that the turnpike company had adopted the substitute as a part of their road. If the case of Batty v. Buxbury can be treated as one where the town are held liable upon the ground of having, in legal effect, adopted the road that had been made by the railroad company, as a part of their highway, then in principle it is the same as the case of Mathews v. Winooski
But, if we treat the fordway as a part of the highway, I think the plaintiff cannot recover. To entitle him to a judgment, the intestate must have been in the exercise of ordinary care at the time the accident occurred. The report finds, that a man of ordinary care and prudence, would not have attempted to ford the stream, at the 'time and place the intestate did, unless, as matter of law, it is allowable to take into consideration his motives, or, in other words, the urgency of his business, and in that event, the referee exculpates the intestate from the charge of a want of ordinary care, in essaying to pass the stream. I apprehend the true inquiry in a case like this would | be, had the intestate, as a man of ordinary prudence, after making | suitable observation and examination, good reason to believe that, with due care, he could pass in safety. If he had, he was justified in making the attempt, whether he had any special business, or was merely on an excursion of pleasure. If he had not good reason to believe that he should go over in safety, but from the urgency of his business was led to try it, when otherwise he ought not, and would not have done it, it strikes me he took the risk upon himself. If the question of ordinary care is to be graduated according to the urgency of a man’s business, the rule would be a very sliding one, and of the most difficult application. I should apprehend the good sense of the case would require that all those circumstances should be taken into consideration, which go to increase or diminish the probability that the stream could be passed in safety, and without accident, and that beyond this we cannot go; and whether the travI oiler would, in every reasonable probability, pass in safety, was in ? no way dependent upon the urgency of his business. It does not appear that there was any primary necessity, that the intestate
This may be very material on the question of ordinary care, if we are to taire into the account the urgency of a man’s business. But I apprehend the true rule is, to regard such facts and circumstances only, as either directly or indirectly bear upon the hazard or safety of the undertaking. No one can suppose that the intestate intended to act rashly, but that is not the question. Did he in fact act with ordinary prudence ? It is not what he may have thought about it. His own idea of his own conduct, cannot make evidence for him, thought it might be evidence against him. But suppose it be granted that the intestate was not in fault in attempting to pass the stream. This is not, I think enough. He must have driven with due care and prudence while in the stream. No principle is better settled, than the one which requires of the traveller due care at the time when the accident happened, and the use of every reasonable means to avoid injury. The report finds distinctly that there was no evidence to prove what took place, after the intestate entered the stream, or of the particular manner in which the accident happened.
The exercise of ordinary care is not to be presumed, but it must be proved as an affirmative fact and the burden of proof is upon the plaintiffs. If the proof is insufficient, the consequences must fall where the onus prolandi rests. Lester v. Pittsford, 7 Vt. 162. Adams v. Carlisle,
Special care is always necessary in driving through a high stream; unless the horse is driven with a taut rein and pressed forward, he will almost be sure to be carried down stream, and to my mind it is highly probable, that the horse in this case was induced to give way to the force of the stream by being driven with a slack rein, or permitted to falter in his course.
Considering this case of very considerable importance, and it having been twice very fully argued, I have been led to examine
I think this action cannot be sustained. The referee has stated in his report, “that a person of ordinary prudence, “ merely desirous to make progress in his journey, but actuated by “ no particular motive for haste, and driving such a horse as was “ driven by Dr. Hyde, would not have ventured to attempt to cross “ the stream at that time and place.” This fact, independent of all other considerations which have been urged, should determine the result of the case. It has uniformly been held, in cases of this character, “ that, if the injury was occasioned, wholly or in part, “ by the negligence or misconduct of the party himself, he cannot “ recover.” If the injury was the result of a want of ordinary care, by the plaintiff, or of causes which common sagacity and forecast could have anticipated and provided against, no action can be sustained. Noyes v. Morristown, 1 Vt. 35-3. Briggs v. Guilford,
The question in relation to the exercise of ordinary care, by Dr. Hyde, on that occasion, is not affected by any confidence or belief" which he may have had that the stream could be forded with safety. His personal convictions of that character, however strong they may have been, are not to be taken into consideration in ascertaining whether he was, on that occasion, in the exercise of ordinary prudence. In the case of Vaughan v. Menlove, 7 C. & Payne, 525, 3 Bing. N. C. 468, it was held by Tindal, Ch. J., “ that the party “ was, under the circumstances, bomid to adopt such measures as “ might be supposed would be adopted by a man of ordinary care “ and prudence; and that it was not enough to show that he had acted bona fide, and according to the best of his own individual
The facts found by the referee places this case, I think, within the application of this principle. . The desire of Dr. Hyde, to proceed in haste, however strong or humane may have been his motive, or important his business, does not affect the case, or the question of his exercise of ordinary prudence on that occasion. His motive or desire did not, and, from the nature of the case, could not, increase his power or ability to overcome the difficulties which existed in crossing the stream. Whether those motives existed or not, the same disproportion existed between his power of resistance, and the difficulties to be resisted and overcome. If there would be a want of ordinary care or prudence when no such desire or motive existed, it would be equally so when they did exist; for, in each case, the liability to accident and injury is equally as certain and unavoidable. It is very true, that a person influenced by the considerations and motive, which, it is said, influenced Dr. Hyde on that occasion, would be induced to become venturesome, and would encounter greater hazards. But if he steps beyond the bounds of ordinary prudence and care, it is done on his own responsibility, and not at the risk of the town.
The most favorable light in which this case can be considered, on the part of the plaintiff, is to regard it as one of mutual negligence in these paz-ties. Assuming, for the purposes of this case, that the town were under obligation to make this road, to put and keep the same in repair for public use and travel, and that they have been negligent in these particulars ; still, Dr. Hyde was not in the exercise of ordinary prudence in attempting to cross the stream on that occasion. The accident which occurred, and the injury which has been sustained, was the immediate and proximate result of this
Dissenting Opinion
dissenting. I feel no disposition to enter into any labored argument in vindication of my opinion. It is not probable the decision, being by a divided court, will be regarded as establishing any important principles in the law, upon matters hitherto controverted.
I. In regard to the liability of the town for the defect in the ford, as a temporary crossing place, I understand the majority of the court are satisfied that the former decisions of this court do render the defendants liable. It may be true, perhaps, that towns are not liable to indictment for not making temporary by-ways, when the highways are rendered impassable. And even if they were, no action lies against them, at the suit of any person thereby delayed or put to inconvenience, in his journey, by reason of such omission. But if such by-way is opened, even by a stranger, and suffered to remain open, and in an unsafe state, the town are liable for any injury, by reason of travelling such open highway. Strangers or travellers are not obliged to consult the public records, or inquire into the history of building such highways, before they are entitled to use them. If suffered to remain open to public use, the town are bound to see that they are in a safe state for public use. This was virtually decided in Blodgett v. Royalton,
H. The other question in the case, I regard as altogether one of fact, and conclusively settled by the finding of the referee. I think the referee has undertaken to make the case plainer, and fairer, and more fully to shadow forth the conflict of evidence and argument, than he need to have done, and has thereby rendered what would otherwise be plain, more or less confused and uncertain. And still, it seems to me impossible to say that the question of care and prudence is not conclusively found for the plaintiff. For, negligence and prudence are both relative terms, and measured chiefly with reference to the peculiar circumstances by which the subject is surrounded. To illustrate the matter, with reference to travelling the highway. Is it not true that my necessity, the urgency of my business, the health of my family, or a friend at a