Ward v. Town of North Haven

43 Conn. 148 | Conn. | 1875

Pardee, J.

The statute provides that the town which by law is-obliged to maintain any bridge, shall erect and maintain a good and sufficient railing or fence on the side thereof; and that if any person shall suffer any damage in his property by reason of the want of such railing or fence, such town shall pay to him who shall so suffer, just damages.

The court in this case charged the jury as follows: “Your decision upon one question of fact may decide the case, and that is, where these horses were when they started and got beyond the plaintiff’s control. Were these horses at the time they took fright and ran away occupying the highway for the ordinary and legitimate purposes of travel ? If they were not, if they were hitched upon the plaintiff’s land off the highway, and being frightened there got away and ran into the highway and this one was killed, then the town is not liable, and you must render a verdict for the defendants.” Of this charge the plaintiff complains, the verdict having been for the defendants.

We cannot accept the broad, unqualified doctrine of the charge, that, disregarding all questions as to care upon the part of the plaintiff and neglect on the part of the defendants, and putting aside all other facts and considerations, the single fact that the fright of the horse occurred at a point outside of the limits of the highway, alone and of itself bars the-plaintiff from a recovery in this action. For, assuming with the defendants that the purpose for which towns are compelled to construct highways and bridges and keep them in good and sufficient repair, is to promote the comfort and convenience and ensure the safety of travelers, that is, of all persons who have lawful occasion to pass over them upon business oi\for pleasure, yet the word “travelers,” as used in this connection, should be interpreted in the light of knowledge common to all, gained from observation and experience, as to the manner in which people are accustomed to use and enjoy highways; so interpreted as to permit a convenient and beneficial use ; such use as will make them means for the promotion of the business interests of those who pass over them and at the same time preserve for them the protection of the' statute. Of course the passage of the traveler, along the highway is not, as a rule, continuous between the extreme points of his journey; the demands of his business oftentimes compel him to withdraw temporarily from the limits of the road; the dwelling-house, the post-office, the store, the grist-mill, the blacksmith’s shop, the inn, and the watering trough, quite often stand a little aside, and accessible from the highway; to visit one or the other of these is the occasion for the passage upon it; those who maintain it expect the traveler to draw aside for business or pleasure at these several places and return to it. Indeed, these temporary, perhaps momentary, withdrawals from and stoppages outside of its limits, with the intent to return to it and pursue the journey, are so absolutely necessary to the beneficial and convenient use of it-by the public, that they should be considered as necessary incidents to a passage over the road.

And a person who does so draw aside does not by the mere force of that single fact, irrespective of all other considerations, .case to be a traveler in the true and just sense of that term ¿..d is not under all circumstances placed béyond the protec- ; or, of the law, if during the period of such withdrawal, witli;-.a[.fault or negligence on-his part, his horse becomes frightened and passes from his control upon the highway and is injured by reason of the neglect of the town to provide a sufficient railing to a bridge ; and this doctrine, although not accepted in all jurisdictions, has received the sanction of this court. In Baldwin v. Greenwoods Turnpike Co., 40 Conn., 238, the defendant corporation was charged with the duty of keeping a good and sufficient railing or fence upon the side of a bridge; this duty it liad neglected to perform; the plaintiff’s horse became frightened and uncontrollable upon a town road as to which the defendants were charged with no duty or responsibility ; in his fright the horse ran upon private property; from thence he returned to the town road, and from that ran, without any driver, upon the defendants’ turnpike and bridge, and off the side of the latter and was injured. The court instructed the jury “that if the injury to the plaintiff’s horse happened, as claimed by him, through the want of a sufficient railing upon the defendants’ bridge, the fact that the accident which in the succession of events was the first cause leading to such injury happened outside the limits of the defendants’ road, would not prevent his recovery; nor the circumstance that the horse in running went entirely off the limits of any highway.” This court approved of these instructions.

There should be a new trial.

In this opinion the other judges concurred.