MAYER, Circuit Judge
(after stating the facts as above). The cause was carefully tried, and objections were made and exceptions taken by counsel for defendant in timely and accurate fashion. These exceptions present clearly certain vital questions in the case, which render unnecessary a detailed statement as to the circumstances of the accident. It is sufficient to state that, if defendant railroad came within the statute (General Laws of Vermont, § 5173), the jury was justified in finding that it did not perform its statutory duty. In such circumstances, and passing by some questions raised as to the reception and exclusion of testimony, the important remaining questions would be whether the court erred (1) in charging as. stated, supra; and (2) in failing to direct a v-erdict because plaintiff, as matter of law, was guilty of contributory negligence.
We do not find it necessary to discuss the latter question at length, because we think on the evidence that the question of contributory negligence was one of fact for the jury, although we shall point out the necessity of adhering to settled Vermont law in charging the jury on this point.
1. The first question is whether the word “road,” in the Vermont statute, means private road or public highway. It will be noted that the words used are “a road or street.” No one would seriously contend that “street” meant other than a public highway. “Street” is defined, for instance, in the Standard Dictionary as “a public way * * * in a city, town, or village. * * * ” As said in Matter of the Application of Woolsey, 95 N. Y. 135, 140:
“In common parlance, the word * * * is supposed to relate entirely to tbe avenues and thoroughfares of cities and villages, and not to roads and highways outside of municipal corporations. * * * ”
While this question is taken from a case which construes a provision of the New York Constitution, the definition, supra,'is commonly accepted both in popular understanding and when used in statutes or ordinances. See, also, 7 Words and Phrases, p. 6684 et seq. It is plain, therefore, that the word “streets,” as used in the Vermont statute refers to public highways within the corporate limits of cities, villages, or other municipal corporations. It was necessary, therefore, to refer in the statute also to those highways which were outside of municipal corporations in what may be called country sections of the state. Remembering that “streets” referred to public highways, within a municipal corporation, the rule of noscitur a [919]*919sociis applies to the word "road,” as indicating a public and not a private road.
If any other meaning were intended, it would be normally expected that the statute would have read, “a public and private road.” A statute of North Dakota of similar character was construed in Reynolds v. Great Northern Ry. Co., 69 Fed. 808, 16 C. C. A. 435, 29 L. R. A. 695. In that case, Judge Sanborn, in a thorough and comprehensive opinion, sets forth the reason leading to the conclusion that the word “road” in such a statute means a public road or highway. In addition, it may be suggested that it is hardly to be supposed that the Legislature of Vermont would put on a railroad the burden of ascertaining each and every private road along its operated right of way. The owner of property for his own convenience might make and open a private road, and, if the statute were construed to mean “private road,” then its obligations would at once come into play, even though the railroad would have no information as to the existence of the road. It is difficult to conclude that such a responsibility would be placed upon the railroad, at its peril, in the absence of clear language in the statute. Many cases have been cited in support of both contentions; i. e., that "road,” in this statute, meant a public highway, and per contra meant a private road; but we agree with the views expressed by Judge Sanborn.
In the case at bar, the Vermont courts have not construed this statute, and therefore we have examined the various Vermont statutes called to our attention, in order to ascertain whether these statutes invite a different conclusion than has just been stated. In our opinion, the whole trend of the Vermont statutes dealing with highways and roads is that those two words are synonomously and alternatively used. Thus section 32 of General Laws reads:
“HiffMcay; Road. The word ‘highway’ or ‘road’ shall include bridges thereon.”
Section 4480 reads:
“When application by petition is made to the county or Supreme Court, to discontinue a highway laid by commissioners appointed by either of such courts, which has not been built agreeably to the orders of such court, the petition shall be served on one or more of the original petitioners for the laying of such road, as well as on one or more of the selectmen of the town or towns through which the road is laid, or the same, on motion, shall be dismissed. * * * ”
Similar synonymous use of these words is found in sections 4485, 4578, and 4579. It is unnecessary to prolong the illustrations; for it appears quite clear that “road” means a public highway, when used in statutes having to do with the laying out of roads, and the rights and obligations which spring therefrom and from the use of roads for purposes of travel or otherwise.
2. The next question is whether there was evidence which justified the court in submitting to the jury the question as to whether or not the road here concerned was a public highway. In some circumstances, whether or not a road has been-so used as to become a public highway is a question of fact. It is clear from the evidence [920]*920that the road was originally built for the benefit of a private mill' owner, and so continued when the village of Ryndonville bought the property, which has since been used for an electric light plant. There is evidence that some members of the public used the road in order to see the falls and for picnicking, -fishing, or boating. The rule in respect of such use is well stated in 8 R. C. T. 890, 891, where it is pointed out that the' acts and declarations of the owner of property relied on to establish dedication must be convincing and unequivocal, and that the intention to appropriate to the general use of the public must be clear. Citing R. C. L., supra, the Supreme Court of Vermont in Gore v. Blanchard, 118 Atl. 888, recently decided and not yet [officially] reported states:
“But no such presumption arises where, as in the * * * case it merely appears that some of the inhabitants of a certain locality, even with the-knowledge of the landowner, travel over a small, worthless strip of uncultivated, uninclosed land for the purpose of getting ice in the winter and occasionally for the purpose of fishing.”
Fundamentally, however, under the highway system of Vermont, adverse user by the public is wholly ineffective to establish a public highway if the town authorities have refused or failed to-sanction the adoption. In Way v. Fellows, 91 Vt. 326, 329, 100 Atl. 682, 684, the court said:
“While adverse user by the public for the necessary period may be evidence-of an adoption, it is wholly ineffective, under our highway system, to establish a public highway, if the town authorities have refused or failed to sanction the adoption. Our decisions relating to the dedication of highways are in point.
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MAYER, Circuit Judge
(after stating the facts as above). The cause was carefully tried, and objections were made and exceptions taken by counsel for defendant in timely and accurate fashion. These exceptions present clearly certain vital questions in the case, which render unnecessary a detailed statement as to the circumstances of the accident. It is sufficient to state that, if defendant railroad came within the statute (General Laws of Vermont, § 5173), the jury was justified in finding that it did not perform its statutory duty. In such circumstances, and passing by some questions raised as to the reception and exclusion of testimony, the important remaining questions would be whether the court erred (1) in charging as. stated, supra; and (2) in failing to direct a v-erdict because plaintiff, as matter of law, was guilty of contributory negligence.
We do not find it necessary to discuss the latter question at length, because we think on the evidence that the question of contributory negligence was one of fact for the jury, although we shall point out the necessity of adhering to settled Vermont law in charging the jury on this point.
1. The first question is whether the word “road,” in the Vermont statute, means private road or public highway. It will be noted that the words used are “a road or street.” No one would seriously contend that “street” meant other than a public highway. “Street” is defined, for instance, in the Standard Dictionary as “a public way * * * in a city, town, or village. * * * ” As said in Matter of the Application of Woolsey, 95 N. Y. 135, 140:
“In common parlance, the word * * * is supposed to relate entirely to tbe avenues and thoroughfares of cities and villages, and not to roads and highways outside of municipal corporations. * * * ”
While this question is taken from a case which construes a provision of the New York Constitution, the definition, supra,'is commonly accepted both in popular understanding and when used in statutes or ordinances. See, also, 7 Words and Phrases, p. 6684 et seq. It is plain, therefore, that the word “streets,” as used in the Vermont statute refers to public highways within the corporate limits of cities, villages, or other municipal corporations. It was necessary, therefore, to refer in the statute also to those highways which were outside of municipal corporations in what may be called country sections of the state. Remembering that “streets” referred to public highways, within a municipal corporation, the rule of noscitur a [919]*919sociis applies to the word "road,” as indicating a public and not a private road.
If any other meaning were intended, it would be normally expected that the statute would have read, “a public and private road.” A statute of North Dakota of similar character was construed in Reynolds v. Great Northern Ry. Co., 69 Fed. 808, 16 C. C. A. 435, 29 L. R. A. 695. In that case, Judge Sanborn, in a thorough and comprehensive opinion, sets forth the reason leading to the conclusion that the word “road” in such a statute means a public road or highway. In addition, it may be suggested that it is hardly to be supposed that the Legislature of Vermont would put on a railroad the burden of ascertaining each and every private road along its operated right of way. The owner of property for his own convenience might make and open a private road, and, if the statute were construed to mean “private road,” then its obligations would at once come into play, even though the railroad would have no information as to the existence of the road. It is difficult to conclude that such a responsibility would be placed upon the railroad, at its peril, in the absence of clear language in the statute. Many cases have been cited in support of both contentions; i. e., that "road,” in this statute, meant a public highway, and per contra meant a private road; but we agree with the views expressed by Judge Sanborn.
In the case at bar, the Vermont courts have not construed this statute, and therefore we have examined the various Vermont statutes called to our attention, in order to ascertain whether these statutes invite a different conclusion than has just been stated. In our opinion, the whole trend of the Vermont statutes dealing with highways and roads is that those two words are synonomously and alternatively used. Thus section 32 of General Laws reads:
“HiffMcay; Road. The word ‘highway’ or ‘road’ shall include bridges thereon.”
Section 4480 reads:
“When application by petition is made to the county or Supreme Court, to discontinue a highway laid by commissioners appointed by either of such courts, which has not been built agreeably to the orders of such court, the petition shall be served on one or more of the original petitioners for the laying of such road, as well as on one or more of the selectmen of the town or towns through which the road is laid, or the same, on motion, shall be dismissed. * * * ”
Similar synonymous use of these words is found in sections 4485, 4578, and 4579. It is unnecessary to prolong the illustrations; for it appears quite clear that “road” means a public highway, when used in statutes having to do with the laying out of roads, and the rights and obligations which spring therefrom and from the use of roads for purposes of travel or otherwise.
2. The next question is whether there was evidence which justified the court in submitting to the jury the question as to whether or not the road here concerned was a public highway. In some circumstances, whether or not a road has been-so used as to become a public highway is a question of fact. It is clear from the evidence [920]*920that the road was originally built for the benefit of a private mill' owner, and so continued when the village of Ryndonville bought the property, which has since been used for an electric light plant. There is evidence that some members of the public used the road in order to see the falls and for picnicking, -fishing, or boating. The rule in respect of such use is well stated in 8 R. C. T. 890, 891, where it is pointed out that the' acts and declarations of the owner of property relied on to establish dedication must be convincing and unequivocal, and that the intention to appropriate to the general use of the public must be clear. Citing R. C. L., supra, the Supreme Court of Vermont in Gore v. Blanchard, 118 Atl. 888, recently decided and not yet [officially] reported states:
“But no such presumption arises where, as in the * * * case it merely appears that some of the inhabitants of a certain locality, even with the-knowledge of the landowner, travel over a small, worthless strip of uncultivated, uninclosed land for the purpose of getting ice in the winter and occasionally for the purpose of fishing.”
Fundamentally, however, under the highway system of Vermont, adverse user by the public is wholly ineffective to establish a public highway if the town authorities have refused or failed to-sanction the adoption. In Way v. Fellows, 91 Vt. 326, 329, 100 Atl. 682, 684, the court said:
“While adverse user by the public for the necessary period may be evidence-of an adoption, it is wholly ineffective, under our highway system, to establish a public highway, if the town authorities have refused or failed to sanction the adoption. Our decisions relating to the dedication of highways are in point. The question frequently arose under the highway damage law, and there it was held that neither a dedication of land to the public for a highway, nor the use of it as such by the public, was sufficient to impose upon the town the duty to keep it in repair, unless it had leen accepted and adopted by the proper town officers.” (Italics ours.)
See, also, Bacon et al. v. Boston & Maine R. R. Co. et al., 83 Vt. 421, 436, 437, 76 Atl. 128, and Blodget v. Royalton, 14 Vt. 288, 295.
It must be remembered that, in determining whether or not a road or. way is a public highway, the essential feature is the responsibility of the town or other governmental subdivision in which the road is situated. If the road is a private road, the local government ordinarily has no responsibility to repair the same, and hence no responsibility for accidents which may happen because of the negligence of the local government. If, on the other hand, the road or way is a public highway, then certain statutory and common-law liabilities are placed upon the local government. On the evidence in this case, the test really is whether, if at any time some accident had occurred through.failure to keep this road in proper condition, an action would lie against the town. The acts upon which plaintiff relied to show adoption were casual, and occurred at odd times over a long period of years. They consisted, in the main, of some occasional work by the road commissioner; but with only one exception is there any evidence that the selectmen-either had knowledge of the act, or that they took any official action or course which can be characterized as in any manner evidence of adoption. The single exception is that [921]*921Mr. Hall petitioned the town for a road to his house, which is in the vicinity. The town did part of the work, and Hall did part gratuitously. The road to Hall’s house, however, comes on the road in ■controversy at the westerly end near the highway. It is an entirely different road. If there was any dedication, it was by Hall, and not by the owners of the road. Hovey, who was the first road commissioner of the town of ffyndon, testified as to one instance where he worked the road with a road machine:
“Only tlie piece that goes down a little ways froln the Lyndon road, and -the hill that went up to the Wilder house, or the Hall house, now called.”
Hovey did not testify as to the extent or cost of the work, nor whether he had authority from the town officials to do the work. Clifford, another road commissioner, testified that he paid Hall for one-half day’s work for putting some dirt under the gate in the road •on one occasion. Hall was paid by Clifford, the road commissioner, with a town order; but there is no testimony as to what knowledge, if any, the selectmen had, or as to the technical character of this town order, or whether the selectmen authorized the same, or whether this was merely out of such appropriation as may have been made for the use of the road commissioner. There is also some testimony by ■another commissioner as to a snow roller, which was used occasionally on this road; but it does not appear whether the use of the snow roller was a friendly service or in pursuance of authority of the selectmen.
As opposed to this and a few other odd instances, occurring ■over a very long period of years, there is overwhelming testimony which must lead to the conclusion that the road was never, adopted by the town authorities, and thus was never dedicated and never became a public highway. We do not, of course, rest our conclusion upon the testimony in behalf of defendant upon the proposition. Giving to the testimony of the plaintiff every favorable inference, it fails in the aggregate to disclose any evidence, in legal acceptation, that the road in question was a public highway. It was error, therefore, to submit that question to the jury, and that error was not cured by the submission of the first question.
3. In view of the foregoing, it must be plain, also, that' the part of the charge, quoted supra, was highly prejudicial to defendant, because the court charged as matter of law that it was the duty of defendant to ring the bell, etc., and, if the jury found that defendant failed so to do, then that their verdict must be for plaintiff. What'has been said above does not, however, deprive plaintiff of its cause of action upon the theory that the defendant violated its common-law duty, so that its alleged negligence was the proximate cause of- the death of plaintiff’s intestate. The charge of the court on this branch of the case, beginning with the words, “Regardless of the statute,” and ending with the words, “the burden of proof is on the plaintiff on this question,” was clear and admirably put, and sound with two exceptions:
[922]*922(а) That part of the charge wherein the court stated “that defendant’s rule that an engine should not be run faster than 35 miles an hour” wás error. In this case, the rule of the railroad company as to speed should not have been received in evidence. Whether or not a speed in excess of 35 miles an hour was evidence of negligence was a fact, with other facts, to be determined by the jury. This rule was a precautionary rule for the guidance of the employés of the railroad. The circumstances in this and other cases might be such that a speed in excess of 35 miles might have no relation whatever to the question of negligence. Testimony as to a breach of a rule of the railroad for government of its own employés is quite different from testimony as to the breach of a statute or an ordinance, which has been generally held as furnishing some evidence of negligence, to be considered by the jury, together with all the other facts and circumstances.
(b) The court also stated that the jury could take into consideration “the fact that engine was equipped with a whistle and bell for the purpose of giving warning of its approach.” That fact was, of course, immaterial. Because the engine was thus equipped, it does not follow that the failure to use the bell or whistle was a breach of duty 'in the circumstances. This instruction might lead the jury to believe that the equipment referred to was evidence of the duty of the railroad to use such equipment. To determine the negligence of defendant, the jury, of course, may consider the failure to ring the bell or blow the whistle, but not the mere fact that the engine was equipped with a bell and a whistle.
4. It is desirable also to call attention to the court’s refusal to charge the following request:
“The general rules applicable in cases of this kind are well settled. One who is about to cross a railroad track must look and listen for an approaching crain, and must stop to listen, if that is necessary to enable him to listen effectually. If his vision is obstructed, he must be specially vigilant as regards his hearing. If circumstances are such that his hearing cannot be relied upon, he must look with especial care. He must continue to look and listen as he approaches the track, until the last moment when the discovery of a train would avail for his protection.”
This request was in accordance with Vermont law, as held in a long line of cases. Carter v. Central Vt. R. R. Co., 72 Vt. 190, 47 Atl. 797; French v. Grand Trunk Ry. Co., 76 Vt. 441, 58 Atl. 722; Shumm’s Adm’x v. Rutland R. R. Co., 81 Vt. 186, 69 Atl. 945, 19 L. R. A. (N. S.) 973; Flint’s Adm’r v. C. V. Ry. Co., 82 Vt. 269, 73 Atl. 590; Labelle v. C. V. Ry. Co., 87 Vt. 87, 88, 88 Atl. 517; Hazen’s Adm’r v. Rutland Ry. Co., 89 Vt. 94, 94 Atl. 296; Harrington v. Rutland Ry. Co., 89 Vt. 112, 94 Atl. 431; La Mountain, Adm’x, v. Rutland R. R. Co., 93 Vt. 21, 106 Atl. 517.
The federal courts, in order to assure, uniformity and harmony of decision in respect of a question of this kind, will follow the law as laid down by the highest state court in the jurisdiction, in which the negligence occurs. The proposition is exceedingly well stated by Judge Walker in Roberts v. Tennessee Coal, Iron & R. Co., 255 Fed. 469, at page 473, 166 C. C. A. 545.
[923]*923 To summarize briefly: If on retrial there be no testimony in addition to that presented in this record, the case must rest upon the common-law duty of defendant, and the statute (section 5173) will be inapplicable. Of course, plaintiff, in order to show whether or not defendant was negligent, may introduce testimony showing the nature of the road, its situation, and the surrounding situs, the amount of travel over the road at any time since the railroad began running its engine or trains there, and the knowledge of the railroad as to the existence of the road and any other facts thus relevant. The burden of proving contributory negligence under the practice in the United States courts is, of course, upon the defendant, but defendant will be entitled to the instruction above referred to.
Judgment reversed.