Tisdale v. Inhabitants of Norton

49 Mass. 388

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1844
• Status: Published

Opinion

Dewet, J.

The liability of towns in cases like this, being wholly a statutory provision, is to be limited to cases falling within the statute. The injury for which a remedy is given is an injury occasioned by any defect or want of repair in an) highway, town way, causeway or bridge. Rev. Sts. c. 25, § 22. Was the injury occasioned to the plaintiffs, as shown by the evi dence, attributable to a defect or want of repair of a highway ? In one sense, as a remote cause, it may be said to be so, inasmuch as the defect in the highway was doubtless the occasion of the plaintiffs’ attempting to travel, without the limits of the highway, over the adjacent lot. But the proximate, not the remote cause, is that which is referred to in the statute. The statute liability is confined to injuries occasioned by reason of defects in the highway. The actual cause of the injury sus tained was the unexpected depth of the water in the pond without the limits of the highway, and over which pond the plaintiffs were passing when the injury was received. The path within the limits of the highway was so obviously impassable, that no one exercising ordinary prudence would have attempted to travel over it. The plaintiffs acted upon this hypothesis, and designedly turned from the highway, and entered upon the adjacent lot. They insist that, by reason of the impassable state of the travelled road, they might lawfully enter on the adjacent lot, and have cited various authorities to sustain the position, that where a highway is out of repair, the right devolves upon the traveller to pass over the adjacent grounds, doing no unne cessary damage. Whether this right is not peculiar to the cases of highways required by law to be maintained and kept in repair by the owners of such adjacent lands, and does not attach to public highways maintained at the public expense, might require further examination, if the issue of the present case depended upon that question. It seems to us, however, not to be material to the decision of the case before us. The right to enter upon such adjacent lot might well exist, so far as to protect the traveller from an action of trespass, and yet his entry might be at his own peril, as to the safety of the way in which he was passing over the adjacent lot. Nobody is under any legal obligation to keep in safe and convenient repair the way occupied over such adjacent lot. If the traveller elects to use it, because the highway is notoriously unsafe and dangerous, it is upon his own responsibility. Towns are bound to keep their nighways in repair, and if any injury is sustained through neglect of this duty, or failure to discharge it agreeably to law, they are responsible. But it is for an injury occurring within the limits of the highway. To extend the principle beyond this would be to introduce a rule of great difficulty in its practical application. To what extent may the traveller depart from the highway, in such case, and yet be travelling at the hazard of the town, if any injury occurs on his route, occasioned by the want of a suitable road in the direction he is travelling ? Is the limit to be a few rods, or many ? Is it to be a parallel route, or a circuitous one, leaving entirely the general course of the highway ?

Now, as it seems to us, in case one voluntarily leaves the highway, because it has become dangerous or impassable by reason of want of repair, and enters upon other lands, without the limits of the highway, he has no right to recur to the town for remuneration for any injury occurring to him on the new passage way of his own selection. Due care and diligence are to be used to avoid danger, and if the traveller, with full knowledge that the road is out of repair, shall, with rashness, or, as it is sometimes called, foolhardiness, rush into danger, he is remediless. Wherever, therefore, the road is notoriously a dangerous one, and unsafe for travelling, it becomes the duty of the traveller, upon being apprised of the actual state of things, whether this be indicated by a bar thrown across the road, or other equally effective mode of giving notice, to abandon the route, and make use of some other public way; otherwise, he proceeds at his own peril.

If it be asked, what is the remedy where this, notorious defect and want of repair in a highway are of long standing, and the town is guilty of culpable negligence in not repairing the same ; the answer is, that the statute remedy of proceeding by indictment must be resorted to. It may not be entirely effectual or adequate to meet the case of an individual traveller, who has occasion to pass over the road, and who is deprived of the use of it for a particular occasion; but it seems to be the remedy peculiarly adapted to the case of notorious defects of such character as to forbid the public generally from using such highway by reason of its being in want of repair, and in a state danger ous to the person and property of the traveller.

Verdicts set aside.