The opinion of the court was delivered by
Red field, J.
We have examined this case with some care, and have not been able to discover any good ground to distinguish it from that of Willard v. Newbury, in its principle. The facts are indeed somewhat different. But it seems to us the facts in that case were far more favorable to the town than in the present case. That portion of the road, in that case, where the injury occurred, was, for the time, altogether discontinued, and fenced up by the railroad, with the concurrence of the town authorities. And there was no possible mode in which this fence could have been kept up, except by the town trusting to the servants of the [162]*162railroad to put it up, as they from time to time took it down to draw stone upon it to carry on their work, which they had the legal right to do; or else, by keeping an agent for this exclusive object constantly in the employ of the town. And still, notwithstanding this barrier was left down for that night only, by the mere neglect of the agents of the railroad, the town were held liable to the traveler who was injured through that neglect; thus making the town primarily responsible for the neglect of the servants of the railroad. In effect, saying to the town, the public have a right to look to you for a safe road, and if you trust to the servants of the railroad to keep up such barriers as it is your duty to keep up, their neglect, as between you and the traveler, is your neglect.
And further, it was held by this court, at the last term in Orange county, in the suit, Newbury v. The Railroad Co., that the company was liable for the amount paid by the town for the neglect. of the agents and servants of the railroad, and such costs as accrued in consequence of litigating the question, upon this ground, as this portion of. the expense was incurred virtually for the benefit of the railroad company.
We think, then, it must now be regarded as settled law, in this State, that the primary obligation rests upon the towns, where railroads obstruct their highways, “ to see that the public have a proper by-way to pass around the obstruction, and that proper obstructions were placed and kept up, to divert the travel from such highway or by-way, so long as they remain in an unfit state for the public use, so far as this could be done by common care and diligence,” sfhd that it is not competent for the town to fold their hands and shift this responsibility upon others, whether natural or artificial persons.
This is almost in the very terms of the charge of the county court, in the case of Willard v. Newbury, 22 Vt. R. 460, 461, and the supreme court say in that case, 465 p., that the question of “care and diligence” on the part of the town, “was properly submitted to the jury and under suitable instructions from the court below thus endorsing the charge to the fullest extent. And the rule laid down in that case, as applied to this case could leave no doubt of the correctness of the charge in the court below.
How far this rule is consistent with the decided cases in other [163]*163States, it is needless now to enquire. "We entertain no doubt upon that subject, and if we did, we should not feel at liberty to disregard the solemn determinations of this court, upon the very point, in so recent a case, upon such mature consideration, and so elaborately discussed at the bar, and so satisfactorily reported, and where we entertain no doubt of the satisfactory character of the general principles of reason and policy upon which it is founded.
Whether the., town is held liable upon the adoption of the byway as a part of the highway by acquiescence, (which is the truth of the case, no doubt,) or for not making a suitable by-way and putting up suitable guards to notify the traveler of his danger, until that was done, is important only as to the form of declaring. And the third count in this declaration may be regarded as setting out the very facts in the case, and referring it to the court to put the legal construction upon them, which might in some cases be regarded as' insufficient, upon special demurrer, but always sufficient upon motion in arrest of judgment after verdict.-
It seems to us that all the counts in the declaration may be regarded as sufficient after verdict, and the third count is certainly proved. And if it were necessary we might say the same of the other counts, but that is more questionable.
It is doubtful whether such a by-way can be regarded as a portion of the highway, even if made by the town. It is an open public way for the time being, and as such required to be kept in a certain state of repair, but how far it is to be regarded as one of the public highways of the town, must depend upon circumstances and time, no doubt.
But the consideration that this was made by the railroad company, or that the railroad company were bound to have made it more safe before obstructing the former highway, is nothing with which the traveler has any concern. He is not bound to inquire who makes the by-ways, or by what authority obstructions are put upon the highway. But towns, after having reasonable notice of the existence of obstructions in, their highways, are bound to. remove thqm or make safe by-ways to pass round them, or see to it that they are properly made by others, in order to exonerate themselves from liability to those who have occasion to travel. There is in law no necessary privity between the traveler and any one but the towns, as to the sufficiency of the highways.
[164]*164The towns must look to those who obstruct their highways, and take measures to obtain redress for such injuries.
This judgment must be affirmed.
Note by Redeield, J. The following is an abstract of the cases cited in the argument by defendants’ counsel, but it seems to the court, they have but a remote bearing upon the question before us. And we should scarcely feel justified in talcing time to discuss them in detail. Roxbury v. Worcester Turnpike Co., 2 Pick. 40, is a case of assumpsit to recover for repairing a portion of the highway over which the turnpike company had laid then- road. The court held it a mere voluntary courtesy and denied the remedy.
Commonwealth v. same, 3 Pick. 327, is an indictment to compel the turnpike com pany to repair this portion of the road, and the court held7them liable.
State v. Hampton, 2 New H. R. 22. This was a prosecution against the town for not keeping an old highway in repair, over which the State had given leave to a corporation to build a causeway. Held, a discontinuance of the town highway, and the town no longer liable to repair.
People v. Denslow, 1 Cain’s R. 179. This is where a turnpike company laid their road across or along over an old highway, and erected a gate upon the old highway. The defendant was the gate-keeper. They had express permission in their charter to -erect a gate near a certain house, and tills gate was near that house, and held a fair exéroise of the power and act which the legislature could confer.
Farmers' T. Co. v. Coventry, 10 Johns. R. 389. Toll-gates may be erected upon an old highway which is taken for the turnpike company, if so laid within the charter.
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The opinion of the court was delivered by
Red field, J.
We have examined this case with some care, and have not been able to discover any good ground to distinguish it from that of Willard v. Newbury, in its principle. The facts are indeed somewhat different. But it seems to us the facts in that case were far more favorable to the town than in the present case. That portion of the road, in that case, where the injury occurred, was, for the time, altogether discontinued, and fenced up by the railroad, with the concurrence of the town authorities. And there was no possible mode in which this fence could have been kept up, except by the town trusting to the servants of the [162]*162railroad to put it up, as they from time to time took it down to draw stone upon it to carry on their work, which they had the legal right to do; or else, by keeping an agent for this exclusive object constantly in the employ of the town. And still, notwithstanding this barrier was left down for that night only, by the mere neglect of the agents of the railroad, the town were held liable to the traveler who was injured through that neglect; thus making the town primarily responsible for the neglect of the servants of the railroad. In effect, saying to the town, the public have a right to look to you for a safe road, and if you trust to the servants of the railroad to keep up such barriers as it is your duty to keep up, their neglect, as between you and the traveler, is your neglect.
And further, it was held by this court, at the last term in Orange county, in the suit, Newbury v. The Railroad Co., that the company was liable for the amount paid by the town for the neglect. of the agents and servants of the railroad, and such costs as accrued in consequence of litigating the question, upon this ground, as this portion of. the expense was incurred virtually for the benefit of the railroad company.
We think, then, it must now be regarded as settled law, in this State, that the primary obligation rests upon the towns, where railroads obstruct their highways, “ to see that the public have a proper by-way to pass around the obstruction, and that proper obstructions were placed and kept up, to divert the travel from such highway or by-way, so long as they remain in an unfit state for the public use, so far as this could be done by common care and diligence,” sfhd that it is not competent for the town to fold their hands and shift this responsibility upon others, whether natural or artificial persons.
This is almost in the very terms of the charge of the county court, in the case of Willard v. Newbury, 22 Vt. R. 460, 461, and the supreme court say in that case, 465 p., that the question of “care and diligence” on the part of the town, “was properly submitted to the jury and under suitable instructions from the court below thus endorsing the charge to the fullest extent. And the rule laid down in that case, as applied to this case could leave no doubt of the correctness of the charge in the court below.
How far this rule is consistent with the decided cases in other [163]*163States, it is needless now to enquire. "We entertain no doubt upon that subject, and if we did, we should not feel at liberty to disregard the solemn determinations of this court, upon the very point, in so recent a case, upon such mature consideration, and so elaborately discussed at the bar, and so satisfactorily reported, and where we entertain no doubt of the satisfactory character of the general principles of reason and policy upon which it is founded.
Whether the., town is held liable upon the adoption of the byway as a part of the highway by acquiescence, (which is the truth of the case, no doubt,) or for not making a suitable by-way and putting up suitable guards to notify the traveler of his danger, until that was done, is important only as to the form of declaring. And the third count in this declaration may be regarded as setting out the very facts in the case, and referring it to the court to put the legal construction upon them, which might in some cases be regarded as' insufficient, upon special demurrer, but always sufficient upon motion in arrest of judgment after verdict.-
It seems to us that all the counts in the declaration may be regarded as sufficient after verdict, and the third count is certainly proved. And if it were necessary we might say the same of the other counts, but that is more questionable.
It is doubtful whether such a by-way can be regarded as a portion of the highway, even if made by the town. It is an open public way for the time being, and as such required to be kept in a certain state of repair, but how far it is to be regarded as one of the public highways of the town, must depend upon circumstances and time, no doubt.
But the consideration that this was made by the railroad company, or that the railroad company were bound to have made it more safe before obstructing the former highway, is nothing with which the traveler has any concern. He is not bound to inquire who makes the by-ways, or by what authority obstructions are put upon the highway. But towns, after having reasonable notice of the existence of obstructions in, their highways, are bound to. remove thqm or make safe by-ways to pass round them, or see to it that they are properly made by others, in order to exonerate themselves from liability to those who have occasion to travel. There is in law no necessary privity between the traveler and any one but the towns, as to the sufficiency of the highways.
[164]*164The towns must look to those who obstruct their highways, and take measures to obtain redress for such injuries.
This judgment must be affirmed.
Note by Redeield, J. The following is an abstract of the cases cited in the argument by defendants’ counsel, but it seems to the court, they have but a remote bearing upon the question before us. And we should scarcely feel justified in talcing time to discuss them in detail. Roxbury v. Worcester Turnpike Co., 2 Pick. 40, is a case of assumpsit to recover for repairing a portion of the highway over which the turnpike company had laid then- road. The court held it a mere voluntary courtesy and denied the remedy.
Commonwealth v. same, 3 Pick. 327, is an indictment to compel the turnpike com pany to repair this portion of the road, and the court held7them liable.
State v. Hampton, 2 New H. R. 22. This was a prosecution against the town for not keeping an old highway in repair, over which the State had given leave to a corporation to build a causeway. Held, a discontinuance of the town highway, and the town no longer liable to repair.
People v. Denslow, 1 Cain’s R. 179. This is where a turnpike company laid their road across or along over an old highway, and erected a gate upon the old highway. The defendant was the gate-keeper. They had express permission in their charter to -erect a gate near a certain house, and tills gate was near that house, and held a fair exéroise of the power and act which the legislature could confer.
Farmers' T. Co. v. Coventry, 10 Johns. R. 389. Toll-gates may be erected upon an old highway which is taken for the turnpike company, if so laid within the charter.
Is there any such privity between the plaintiff and the railroad company, as to entitle him to sue for special damages, without some special statute ? or is the privity between the towns and the railroad company? or is the railroad company liable both to the towns and individuals ?
Tinker v. Russell, 14 Pick. R. 279. The canal company had taken the entire road and completely obstructed the highway, and so it remained some years, till a road seven or eight feet wide was made by the neighbors, and the highway surveyor of that district. Plaintiff was injured, and sued the town. The court held the road discontinued by the grant to the canal company and their act under it. This case is per cura and so briefly reported as to afford but slight grounds.
Com. v. Westborough, 3 Mass. R. 406. Certiorari for discontinuing road by laying a new one, when there is nothing in the petition for discontinuance. Held, laying a new road which renders the old unnecessary, is a discontinuance of the old.
Lowell v. Town of Moscow, Maine R. 3 Fairfield 300. The injury happened on a temporary road to get round an obstruction in the old highway. .If the town were obliged to keep the point of road open as a highway, the new road was laid out as a substitute for the old highway, and the time had not expired for opening the new road, and the town were still bound to keep the old road in repair for the purposes of public travel. This is very much like Yornig v. Wheehck in our Reports, and since others. The liability of the town had not altered.
Was the traveler bound to make inquiries in regard to the road being a public highway, before going upon the same, there being no other possible mode of getting on ? or after the injury, is he to be turned over to the railroad corporation, or their [165]*165servants ? Might not a similar rule with equal propriety be extended to the case of a mere tort, by which the road is rendered dangerous ?
Commonwealth v. Charlestown, 1 Pick, R. 180. Inhabitants not bound to repair a newly erected bridge over an arm of the sea, an obstruction to the navigation, and so a nuisance.
It is said the road should have been either formally opened, or in some way adopted by the town. But suppose they never do this, and the public officers never take steps to compel such adoption; then of course the traveler is to be turned over to the railroad corporation for redress and security, and as to this portion of the road the result is that the railroad corporation are alone liable for the first building of the road, and rio one is bound to keep it in repair. The town and the railroad corporation may never agree as to the by-road. Shall it follow that no one is liable for repair ?
Baxter v. Winooski T. Co., 22 Vt. R. 114. No action will lie, for not building sufficient roads for the public to use, but resort must be had to indictment. But that is not this case.