17 F. Cas. 105 | U.S. Circuit Court for the District of Maine | 1870
Travellers have a right to travel by night, as well as by day, and towns are required by law, in this state, to keep their highways, townways, and streets in such repair that they shall be safe and convenient for that purpose. Compensation for any bodily injury received by a traveller, through any defect or want of repair in any highway, townway, or street, may be recovered of the town, bound by law to keep the same in repair; provided it appears that the town had reasonable notice of the defect or want of repair, and that the plaintiff was, at the time, in the exercise of ordinary care. Rev. St. Me. 227. Severe bodily injuries were received by the plaintiff, on the Kith of August, 186G, while walking up Congress street in this city, by the falling of a wooden awning attached to the front of the store, numbered 8GG, occupied at the time by Walker & Son. doing business as fruit dealers and confectioners. When the accident occurred, the plaintiff was on the sidewalk on the southeasterly side of the street, and the evidence showed to the satisfaction of the court and jury that she was in the exercise of ordinary care. Although the awning was constructed of wood, still the evidence showed that the frame was well and strongly built, of sound timbers, supported by four rafters, attached to a joist, spiked securely to the front of the building, and by three iron rods or braces, secured to the building above the frame of the awning by screws, and connected with the front of the frame which supported the awning, by screw bolts running through the plate of the awning frame. Damages were claimed by the plaintiff of the defendants upon the ground that the awning, as constructed, rendered the street defective, and, being unable to adjust the controversy with the proper authorities, she brought an action of trespass on the case, against the defendants, in the circuit court for this district Service was duly made, and the defendants appeared and pleaded the general issue, and, upon that issue, the parties at the last term went to trial, and under the instructions of the court, the district judge presiding,' the jury returned a verdict for the plaintiff, assessing the damages in the sum of $5,000. Dissatisfied with the verdict, the defendants filed a motion to set it aside, and for a new trial, upon the following grounds; (1) Because the verdict is against the evidénce and the weight of the evidence. (2) Because the verdict is against law. (3) Because it is manifestly against the instructions of the presiding justice.
Since that time the several questions involved in the motion have been very fully and ably argued, and the court is now prepared to dispose of the case. Certain conditions are annexed to a right of action for such an injury, which are created by the statute conferring the right, either in express terms, or by the construction given it by the-state courts, which is as obligatory in this court as the text of the statute. Leffingwell v. Warren, 2 Black [67 U. S.] 603. They areas follows, — and they must all concur, before it can be held, that the defendant town-is liable (Nichols v. Brunswick [Case No. 10,238]: (1) That the highway was one that the inhabitants of the town were bound to-keep in repair. (2) That it was defective and out of repair at the time of the accident. (3) That the plaintiff was injured as alleged in the declaration. (41 That the town had reasonable notice of the defect, prior to the-injury. (5) That the plaintiff was in the exercise of ordinary care at the time the accident and injury occurred. (6) That the injury was occasioned solely through the defect or want of repair in the way, whether-highway, townway, or street, and not from any negligence or want of ordinary care on the part of the injured party.
Two of those conditions, — the second and.
Negligence cannot be imputed to the plaintiff; but it is clear to a demonstration that the teamster was both negligent and rash, and that if he could be identified he would be liable to make compensation to the plaintiff for the injuries she received by the fall ing of the board. Suggestions of that kind, however, are of little or no avail, as the evidence furnishes no ground, to hope that he can be found, and, if discovered, it may be found that he is wholly irresponsible. Judging from the evidence as reported, the only person - who saw him drive his wagon, or the rack on the same, against the awning, was the police officer, who testifies that he, the teamster, first collided with the wagon of the witness, which was standing on the same side of the street, opposite the store next below the one to which the awning was attached; that he saw the rack when it first struck the awning; that he hallooed to him to be careful, that he would break down the awning; that he gave no heed to the warning, and that, as his team advanced, the corner of the rack struck the end board of the awning, and it fell on the head of the plaintiff in this case.
Evidently, the jury found that the awning constituted a defect in the street, and, in view of that finding, the only question in the case is, whether they were also justified in finding that the injury was received by the plaintiff through that defect, within the meaning of the statute of the state upon which the action is founded. By that statute it is provided that if any person receives any bodily injury . '. . through any defect or want of repair, or sufficient railing in any highway, town way, causeway, or bridge, he may recover for the same, in a special action on the ease, of the county, town, or persons obliged by law to repair the same, if such county, town, or persons had reasonable no-iice of the defect or want of repair. Rev. St. Me. 227.
Viewed in this light, as the case must be, it is manifest that the rights of the parties
Bodily injury of a very serious and permanent character, beyond all doubt, was received by the plaintiff, without any fault on her part, by the falling of the board; but the question is, whether she received the injury through the defect or want of repair in the street, within the meaning of that statute. Except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, the laws of the several states shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply. Such was the provision of the judiciary act, and it has remained in force to the present time without modification or repeal. 1 Stat. 92. “Infinite mischief would ensue,” said Marshall, C. J., “should this court observe a different rule in construing the statutes of a state, from that established by the judicial authority of the state.” M’Keen v. Delaney, 5 Cranch [9 U. S.] 22. In cases depending on the statutes of a state, the federal courts adopt the construction given to the statute by the highest court of the. state, where that construction is settled and can be ascertained. Polk’s Lessee v. Wendell, 9 Cranch [13 U. S.] 98; Emendorf v. Taylor, 10 Wheat. [23 U. S.] 157. Justice to the citizens of the several states required this to be done, and the natural import of the words in the act of congress includes the laws in relation to evidence and rights conferred by statute, as well as the laws in relation'to property. Vance v. Campbell, 1 Black [66 U. S.] 430; Wright v. Bales, 2 Black [67 U. S.] 535; Loring v. Marsh [Case No. 8,514]. Other authorities of like import might be cited; but it is sufficient to say that the construction given to a state statute by the highest judicial tribunal of the state, is regarded as a part of the statute, and is as obligatory in the federal courts as the text. Leffingwell v. Warren, 2 Black [67 U. S.] 599. Governed by those authorities, it becomes the duty of the court here to follow the state decisions, as ascertaining the true intent and meaning of the provision under consideration. “Persons may be injured,” said Shepley, C. J., in Moore v. Inhabitants of Abbot, 32 Me. 46, “while travelling on the- highway, without being blameworthy and without the fault of those who are required to make the ways safe and convenient, and in such cases the risk is their own.”
Persons may also suffer injury while trav-elling upon the highway which is not safe and convenient, and the injury may not be occasioned by the want of repair, or by their own want of care to avoid it, and in such a case, the same learned judge said, it would be quite clear they could not recover damages of those who were in fault by neglecting to keep the way safe and convenient. Several other propositions were also laid down in that case, which it becomes important to notice, as they are directly applicable to this case; for example, that an injury may also be occasioned by the united effect of a defect in the way, and some other cause, and in that case the court say that the party injured cannot recover of those whose duty it was to keep the way in repair; because he does not prove that the injury was occasioned through or by reason of such, want of repair, and, as applied to the case then before the court, no doubt is entertained that the principle laid down is correct. He should prove, in order to recover, that the injury was occasioned entirely through the defect or want of repair, for the statute was not intended to impose upon towns the burden of making compensation for injuries not occasioned by their own neglect of duty. Trav-ellers are bound to exercise ordinary care, and if they do not and their negligence or want of ordinary care contributes to the injury, the injured party cannot recover of the county or town bound to keep the same in repair, as it cannot be held, in that state of the case, that the injury was occasioned entirely by the defect or want of repair in the way where the injury occurred, as it is certain that the negligence or want of ordinary care of the plaintiff contributed to the result.
Cases may often arise, also, where the way is defective and the proof of injury clear, and yet it may appear that the act .of a responsible third party either caused the injury by forcing the injured party upon the obstruction, or contributing to it, as in this case, and in that state of the evidence it is equally clear that the county or town, though bound by law to keep the way safe and convenient, is not liable to the injured party under that statute, as in that state of the case it cannot be determined that the bodily injury .was received solely through the defect or want of repair in the way. Expressions are certainly found in that opinion which leave it to be inferred that the exemption of towns from liability under that statute, would be extended to cases where the contributory act was the direct consequence of some natural cause, as where the horse of the traveller, though of good temper and well trained, is caused to shy by lightning, or by the rays of the moon suddenly falling on the pathway, through the opening clouds, or other similar incidents occurring in the experience of every one accustomed to travel by night Certainly, towns are not responsible because the horse of the traveller suddenly becomes frightened and starts aside. The question of the liability of towns. &e., where, under such circumstances, the traveller is thrown over a bank or into a stream for the want of a sufficient railing, is a very different one from
Suppose the general rule to be as it is assumed by the court, still it is contended that the cases Springer v. Bowdoinham, 7 Me. 445, and Frost v. Portland, 11 Me. 271, admit of an exception to the geneial rule, and that the case before the court properly falls within that exception; but the court is of a different opinion. Undoubtedly towns in certain eases are liable, under those decisions, for an injury received by a traveller, by means of an obstruction placed or left in a highway, town-way, or street by a responsible third party, where the obstruction has been allowed to remain in the highway, townway, or street, until the town is chargeable with notice, but in such cases, the county or town is liable to the injured party, because of their negligence in suffering it to remain, and not on account of the act of the third party in placing or. leaving it in the travelled part of the way. They are bound to repair any such way, as well as to open and make it, and by suffering the obstruction to remain after they have notice of its existence, they become chargeable, because the way is .defective and out of repair. Such cases however, afford no support to the claims of the plaintiff, as they rest entirely upon different ground. Kidder v. Dunstable, 7 Gray, 104. Reference need only be made to such portions of the instructions of the court as relate to the question under discussion. They were as follows: “That if the jury find that the awning as constructed was a defect in the street, and that the travelled part of the same, outside of the sidewalk, was safe and convenient, so that the teamster with his team could have passed over any part of it without difficulty, and that he reined his team into the gutter, and so drove along as to strike the awning with the corner of his rack, and thereby forced off the end board of the same, so that it fell upon the plaintiff, causing the injury for which the suit is brought, and that the board would not otherwise have fallen, the defendnats are not liable, because, when an injury is occasioned by the united effect of a defect in the highway and any other cause, the town or city is not liable.” Both parties agreed in the correctness of that instruction, and inasmuch as it is substantially in accordance with the rule laid down in the leading case upon that subject as decided by the supreme court of the state, it was the obvious duty of the jury to have followed it, and if they had done so, their verdict must have been for the defendants. Any remarks to apply the instruction to the evidence as reported is quite unnecessary, as the proper application is as obvious as anything can be in judicial investigations.
Verdict set aside, and a new trial granted.