135 Me. 314 | Me. | 1938
Action on the case for damages for bodily injuries alleged to have been received by the plaintiff through a defect or want of repair in the highway known as Bangor Street in the City of Augusta. The case, having been referred under Rule of Court, comes forward on exceptions to the acceptance of the report.
The Referee, in an extended statement of his findings of fact and rulings of law, reports that at about seven o’clock in the morning of Monday, December 30,1935, the plaintiff, while walking on the sidewalk on the easterly side of Bangor Street, was struck and seriously injured by a passing automobile which skidded on the icy surface of the street in an attempt to avoid a collision with other cars and ran up on to the sidewalk.
It is also found that small ridges on a large patch of ice in the street, formed by an overflow of water from a defective closet in the house of an abutting owner, caused the automobile to skid and the driver to lose control of it. The water had been running into the street and freezing at times for more than a week before the accident and the Street Commissioner of the city, learning of the condition of the way, had caused it to be treated with a mixture of sand and calcium chloride. The day before the plaintiff was injured, being Sunday, no sanding was done and water, either formed by the melting ice or running in from a further overflow from the abutter’s closet, froze in the low temperature and covered the patch with a new coating of ice which obliterated the sanding which had already been done. The street where the ice formed was at no time closed, nor was notice of its condition given to the public.
In this state, it is provided by statute that “highways, town ways, and streets, legally established, shall be opened and kept in
In construing these statutes, this Court has uniformly held that the only standard of duty fixed, and the only test of liability created, is that the highways shall be constructed and maintained so as to-be reasonably safe and convenient for travellers in view of the circumstances of each particular case, not that they shall be entirely and absolutely safe and convenient. Nor under the statute is the question of liability one of negligence and whether in a given case the officers of the town have used ordinary or reasonable care and diligence in constructing and maintaining the way. Regardless of the cause of the defect, if in fact the way is not reasonably safe and convenient, the town is liable to the traveller who is injured thereby in his person or property, and it is immaterial whether the defect arises from the negligence of the town or city officials or from causes which could not be avoided or controlled by them in the exercise of ordinary care and diligence, including the acts or omissions of others. Cunningham v. Frankfort, 104 Me., 208, 70 A., 441; Moriarty v. Lewiston, 98 Me., 482, 57 A., 790; Morgan v. Lewiston, 91 Me., 566, 40 A., 545; Hutchings v. Sullivan, 90 Me., 131, 37 A., 883; Bryant v. Biddeford, 39 Me., 193, 197; Frost v. Portland, 11 Me., 271.
What obstructions, irregularities or conditions or, as it is sometimes stated, inconveniences will render a highway defective so as to make the town or city liable for injuries occasioned thereby is ordinarily a matter of sound judgment upon which opinions may well differ. Moriarty v. Lewiston, supra. And as a general rule the conclusions of the triers of fact on that issue, unless manifestly wrong, will not be set aside. Weeks v. Parsonsfield, 65 Me., 285. It has long been settled, however, that as a matter of law mere slipperiness of
The facts in Smyth v. Bangor are so analogous to those in the case at bar we think that decision controls here and can not be distinguished. There, the plaintiff slipped upon ice on a sidewalk, a part of the street and governed as to the duty of the municipal officers to keep it in a safe and convenient condition by the same statute. The opinion states as a proven fact that “Water which had oozed out of the adjoining bank, and the flow of which may have been increased by th,e drainage from a privy and a sink-spout, had run across the sidewalk and frozen, forming a spot of ice some six or eight feet long and the width of the sidewalk; and the witnesses estimate its thickness from one to three inches. It was in no respect an obstacle to travel except that it made the sidewalk at that place slippery. . . .
“The spot of ice on which the plaintiff slipped was nearly smooth, and almost as level as the sidewalk itself. There is no pretense that it formed a ridge or hummock upon the sidewalk. Some of the plaintiffs’ witnesses say that as the water ran across the walk and froze it formed little ridges or waves ; that the surface of the ice was a little wavy; but no one pretends that it had assumed a form or shape that would have been dangerous to travelers if it had not been slippery. The evidence leaves no doubt in our minds that it was the slippery condition of the sidewalk alone that caused the plaintiffs’ injury.”
In this case, the transcript of the evidence heard by the Referee and made a part of the bill of exceptions discloses that the water which caused the ice patch on which the automobile skidded ran out
The evidence so recorded, stripped of inference which does not rise above conjecture, shows only that the automobile, when the brakes were applied, skidded on the slippery street and went out of control, a not unusual incident in winter automobile travel in this state. Such irregularities in the ice as existed were no greater or more dangerous than those found throughout the length and breadth of our highways where water, thawing and freezing in the winter weather, forms slightly irregular icy surfaces, or the heavy automobile travel on the ways rolls and wears the ice into small ruts and ridges. Under the existing statute, we are of opinion the doctrine of Smyth v. Bangor remains the only sound and reasonable rule to apply to such highway conditions.
We have not overlooked the argument advanced that the statute imposes a different standard of responsibility on municipalities when ice is formed in the highways from artificial causes and not by the natural fall of rain or snow. No such distinction was ob
Nor in the absence of a statutory defect in the way can liability be predicated on the negligent failure of the Street Commissioner of Augusta or other municipal ofBcer to remove, guard or give public notice of the ice formation. “This is not a common law action of negligence against an individual or a corporation, but a statutory remedy against a municipality, and the rights of the traveling public and the liability of the municipality are limited by the scope of the statute. Independent of statute there is no liability whatever on the part of municipalities for injuries caused by defective highways. The liability is a creature of the statute, and it does not extend beyond the express provisions McCarthy v. Leeds, 116 Me., 275, 101 A., 448, 449. See Huntington v. Calais, 105 Me., 144, 73 A., 829. Obviously, decisions from other jurisdictions cited on this point, which are based on different statutes or the common-law rules of negligence, can not here be deemed of controlling import.
On the main issue in this case, we are of opinion that the evidence does not establish that the plaintiff was injured by a defect or want of repair in the highway for which the City of Augusta is liable. The exception reserved to the acceptance of the report finding to the contrary must be sustained.
The ruling below was also erroneous on another point and the objection made on that ground is well taken. It is clearly established that the ice patch in controversy on Bangor Street had been repeatedly treated with sand and calcium chloride during the week before the accident occurred on which this action is based, and each
In view of the conclusions reached on the points already considered, it is unnecessary to prolong this opinion by a discussion of other objections filed and argued. It appearing that the bill of exception is sufficient, the entry is
Exceptions sustained.