Stinson v. City of Gardiner

| Me. | Jul 1, 1856

Lead Opinion

Tenney, C. J.

The obligation of the defendants to keep in repair, the highway on which the injury to the plaintiff is alleged to have been received, the defective condition of the railing at the time of the injury, and reasonable notice thereof to the city of Gardiner, are admitted.

Evidence was introduced by the plaintiff, tending to prove, that she was returning from school to her father’s house; that she passed on to a side-walk, elevated some eleven feet above the ground, on the outside of the way; that she stopped and leaned against a post to which the railing had been nailed, or against the railing, which gave way, having been loose and swinging for some time, and that she was thrown to the ground and seriously injured.

The defence was, that at the time and near the place of the accident, the plaintiff was at play in the road with another, or that the two were scuffling, and that she run, or was forced with some violence against the railing; and that the accident happened, while she was on the road for a purpose, and doing acts, which exonerate the city from liability to damages for the injury received.

From the exceptions, it is manifest, that the testimony introduced by one party, was in conflict with that introduced by the other in some respects, particularly, in reference to the plaintiff’s acts at the time of her fall.

All persons have the right to pass and repass upon public roads, so long as they violate no laws for the common good, or for the protection of individuals. Within these restrictions, they are entitled to the use of the highway for the purposes of travel; whether the object of that travel is business or pleasure; whether they pass on foot, with carriages, or in the various modes, which each individual may choose to adopt. Any part of the highway may be used by the traveler, and in such direction as may suit his convenience or taste, provided he therein conforms to all laws and well settled rules connected with such use. Children are not restricted in passing and repassing upon the streets and roads, more than adults. And the same rules are to be applied equally to all in regulating the use of highways for the objects designed.

Safety and convenience for travelers, and their horses, carts and carriages, are the rule by which it is to be determined, whether or not there be any defect or want of repair, or sufficient railing upon highways. R. S., c. 25, § 57. It being settled in a given case, that the way is defective in some of the particulars, wherein the statute requires that it shall be safe and convenient, a remedy is given to persons referred to, in the same statute, who shall receive any bodily injury, &c., through such defects. Sect. 89.

It is for travelers, and their horses, carts, teams and carriages, that these highways are to be opened, kept in repair, and amended from time to time. And the statute has not provided that they shall be kept safe and convenient for any others. A street or highway, may be put to a use at a particular time and place, and that use be entirely foreign to the design of passing and repassing thereon, for the purpose of travel, according to the meaning of the statute; and the appropriation may require a much better condition of the ground than would be necessary to make it safe and convenient for travelers. Hence, the rule of safety and convenience for the traveler, might differ essentially from that which would be applied, in a use, not provided for, or contemplated by the statute.

The public have no right in a highway, excepting the right to pass and repass thereon. Stackpole v. Healy, 16 Mass. 33" court="Mass." date_filed="1819-07-01" href="https://app.midpage.ai/document/stackpole-v-healy-6404830?utm_source=webapp" opinion_id="6404830">16 Mass. 33. “Subject to the right of mere passage, the owner of the road is still absolute master. The horseman cannot stop to graze his steed, without being a trespasser; it is only in case of inevitable, or at least accidental detention, that he can be excused, even in halting for a moment.” Pearsall v. Post, 20 Wend. 111" court="N.Y. Sup. Ct." date_filed="1838-07-15" href="https://app.midpage.ai/document/pearsall-v-post-5515160?utm_source=webapp" opinion_id="5515160">20 Wend. 111. In Peck v. Ellsworth, 36 Maine, 393, Sheplby, C. J., in delivering the opinion of the Court, says: “ Towns are made liable for injuries, by the statute, only to the extent of its provisions.” And it is held, in that case, that a party can recover of a town damages for an injury received on the highway, only when the defect or want of repair will prevent the way from being safe and convenient for travel.

If a circus company should appropriate a part of a public highway for the exhibition of their feats in horsemanship, or other acts of agility, entertaining no design to use that part of the way, as travelers, could one of that company have any ground for a claim of damages for bodily injuries, or other losses, on account of any defect therein, against the town or city, in which the way was located ? When children appropriate a part of the road for their sports, and cease to use it as a way for travel, the town or city through which the way passes, is not responsible for injuries, which may be received by any of the children so engaged, although the injuries may take place through a defect in the road.

The defendants requested the Judge to instruct the.jury, that if the plaintiff, at the time of the accident, was using the highway as a play-ground, and not as a traveler, she could not recover. This instruction the Judge refused to give; and it was not given, in substance, in any of the remarks made by the Judge to the jury. The facts assumed in this request, had some support at least in the evidence, as reported in the exceptions ; and, therefore, the instructions requested, were not for a case purely hypothetical. If the plaintiff was using the road as a play-ground, and not as a traveler, the use thereof for purposes of travel, must be regarded as entirely suspended, and she was using the ground for an object altogether different from that contemplated by the statute.

We think, according to well settled principles, the instructions should have been given.

Exceptions sustained, verdict set aside, new trial granted.

Rice and Appleton, J. J., concurred. Cutting, J., did not sit.

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Dissenting Opinion

Goodenow, J.,

gave the following dissenting opinion: —

I cannot concur in the opinion drawn by the Chief Justice. I do not perceive that the point was made in the opening of the defence, that the plaintiff was not a traveler upon the road, at the time of her injury. The case states that the evidence on her part “ tended to prove that she was returning from school, in June, 1854, to her father’s house; that she passed on to the side-walk, elevated some eleven feet above the ground, on the outside of the highway.” It is not denied that this side-walk was a part of the highway. There is no evidence reported on the part of the defence to,iudicate that she was not there as a traveler. The evidence as to her having had some sport or play with Robbins, if uncontradicted, would be altogether insufficient to found upon it a conclusion that she was there for the purpose of making the highway a “play-ground,” and not as a traveler.

We must expect of children, the habits of children, and that they will be mirthful, and joyous, and sportive, while regularly on the way, as travelers, to and from school.

It does not appear at what time, in the progress of the trial, that the “ defendants contended that they were not by law required to prepare their road for a play-ground for children.” It does not appear to _ have been contended by the plaintiff, that they were so required. The Court was not requested to instruct the jury upon that simple proposition, but the request for instructions added, “and that if the plaintiff, at the time of the accident, was using the highway as a play-ground, and not as a traveler, she could not recover.” The Judge might well refuse to give this instruction, as calculated to mislead the jury, by assuming that there was evidence to establish a proposition, when no such evidence appears to have been in the case. To my mind, the instruction given was much better adapted to lead the jury to a right conclusion, than the instruction requested.

It not unfrequently happens, that positions are taken at the close of a trial, while the Judge is charging the jury, or after his charge, that were not taken in season to give the adverse party an opportunity to reply to them by evidence or argument. And mixed propositions, or requests for instructions, are made, some of which are applicable, and some not applicable to the case under consideration. In such cases, it is the duty of the Judge to analyze them, and separate what is relevant and sound from what is irrelevant and unsound. This is what I think the Judge presiding did in this case, and nothing more.

The Judge had already instructed the jury, “that the road must be kept safe and convenient only for the use of travelers.” The jury must have found that the plaintiff was a traveler. It seems to me like an attempt on the part of the defendants to substitute a new issue, and different from the real one which had been relied upon and discussed before the jury; and it should be treated like a departure in pleading. The real point litigated, was the care or want of care in the plaintiff.

There are no facts in the case to indicate that the plaintiff was at the place where the injury happened, for the purpose of using it as a “play-ground.” If she had been a boy with bat and ball, or other implements for play, in company with other boys, such a presumption might have arisen. It seems to me that the evidence, as well as the presumptions, are the other way. A “bottle” is not used for the purpose of playing at any game with which I am acquainted.

The defect in the highway, disclosed by the evidence, is one which rendered it unsafe for travelers, beyond controversy.