Kimball v. City of Bath

Rice, J.

— This is a motion to set aside the verdict on the ground that it was rendered against the evidence and the weight of the evidence in the case, and because the damages were excessive; and also on the ground that the jury was improperly selected and filled up. The objection to the manner of selecting and filling up of the jury we do not, however, understand is relied upon.

As to the weight of the evidence, 'we do not think the jury erred in the conclusion that the way was defective, at the time and place of the injury. But it is contended that inasmuch as the street was then undergoing repairs, the defendants are not liable.

Towns are not only authorized, but required by law to repair their public ways, including streets and side-walks, so that they may be safe and convenient for those who may have occasion to pass and repass upon them. To do so effectually, it may be necessary to break up and remodel both the bed of the streets and the side-walks, and at such times the public are necessarily subjected to some degree of inconvenience and insecurity. For such necessary interruption of travel and inconvenience to the public, towns are not liable. But while, for the purpose of repairs, they may thus break up and temporarily obstruct the passage over their public ways and side-walks, they are not authorized to leave their streets or side-walks, while undergoing repairs, in such a condition as unnecessarily to expose those who *222 may pass upon them to inconvenience or danger. At such times, ways should not be left during the night without some temporary railing, or other means of protection, or some beacon to warn passengers against such uncommon danger. By neglecting to adopt such reasonable precautionary measures for the safety of citizens and travelers, towns are equally culpable, and as liable as they are when their ways are permitted to become unsafe from want of repairs. Any other rule would enable negligent or vicious town officers to set pit-falls for the unwary, with impunity.

We think the evidence shows very clearly, that the city authorities “did not adopt suitable precautionary measures to protect, during the night time, passengers upon the street where this accident occurred, while repairs were being made.

The damages assessed by the jury may have been greater than the Court would have awarded upon the evidence. But the parties are entitled to the judgment of the jury and not of the Court upon that question, and Courts will not set verdicts aside on the ground that damages are either excessive or inadequate, unless it is apparent that the jury acted under some bias, prejudice or improper influence, or have made some mistake of fact or law; mere difference of judgment is not sufficient. There is nothing in this case to induce the belief that the jury were prejudiced or unduly biased, or that they made any mistake of fact or law. If they have erred in judgment, the error is not so palpable as to authorize the belief that they were controlled by any improper influences.

Motion overruled. — Judgment on the verdict.

Shepley, C. J., and Tenney, Appleton and Cutting, J. J., concurred.