8 R.I. 349 | R.I. | 1866
The plaintiff, passing along South Water street, in Providence, was injured by a show-board, which, having been placed upon land adjacent to the highway, had been blown down by a high wind and fell upon him. He recovered a verdict for $5,500 against the city, and a motion for a new trial is now made, founded upon alleged errors in the rulings of the judge trying the case; in substance, that he declined to instruct the jury that the city would not be liable for such accidents, — First. Because the show-board was placed by a third party outside of the street, and, Second. Because the injury was caused by the concurrent acts of such party and of the city, if at all from the fault of the city.
It may not be easy to classify all the decisions upon the liability of towns for injuries received by travellers on the high way; but we are of opinion that those which are most analogous to the case at bar do not sustain the plaintiff. Those which he has cited, where the town was held liable when a traveller went off from the highway against a post, or into an adjacent cellar. *352 or into a pond off a steep declivity, may perhaps be all sustained upon the principle that it is the duty of the town to protect, by railings, the side of the highway, so that a traveller using proper care need not fall upon dangers immediately adjacent. The court in which most of these cases have been decided has since held, that when snow falls from an adjoining roof upon and to the injury of a traveller on the highway, the town is not liable to pay for such injury. Hixon v. City of Lowell, 13 Gray, 59. The same court has also held, that when a person slips and falls upon the steps of a building contiguous to the highway and upon the sidewalk, the sidewalk and the steps both being out of repair, still, as the accident happened from the concurrent fault of the town and a third party, the town is not liable. Rowell v. City of Lowell, 7 Gray, 100. We think these cases furnish the nearest analogies to the case at bar.
This liability is one created by statute and cannot be enlarged by courts beyond the scope and intention of the statute; and when a town keeps a highway in order, the liability for accidents in consequence of a sign being insufficiently fastened against an adjacent building was not intended by the statute, we think, to be imposed upon the town. It is one of the large class of accidents to which a traveller upon a public thoroughfare is subjected, though the town may have done its whole duty, under the statute, in regard to the highway. The liability for such accidents would carry with it an equally extensive authority. The towns must necessarily have a corresponding right to control the uses of property adjoining the highway, so as to protect themselves from the liabilities for such use. Our statute permits the surveyor of highways to go outside of the highway for certain specified purposes; and those purposes do not include any protection of the traveller upon the highway, from accidents like this, arising from the use of lands or buildings not within the highway. This right, if it exists, must have some other origin than a statute which imposes a liability for the care of highways; and even the right to protect the sides of the highway by a rail or otherwise, from contiguous dangers, like an open cellar or a steep and dangerous declivity, does not include the right or the duty *353 to fence off the side of the way, when no such immediate and adjacent danger exists. Sparhawk v. Salem, 1 Allen, 30.
Entertaining these views of the law upon this subject, a majority of the court think a new trial should be granted, as the instructions to the jury were not in conformity with them.
