Stinson v. City of Gardiner

All persons, including children, have a legal right to pass upon the public roads, so long as they do not violate laws for individual protection or the common good. And, for the purpose of passing and repassing, they may use any part of the highway, provided they conform to all laws and well settled rules connected with such use. Safety and convenience for travelers, and their horses and teams, is the rule by which to judge whether there be any defect, or want of repair, or sufficient railing, upon highways. The public have no right in a highway, except to pass and repass. When children use a part of the public road for their sports, the town or city through which the way passes, is not responsible for injuries received by any of the children so engaged, though the injuries may result from a defect in the road.

On Exceptions from Nisi Prius, May, J., presiding. This was an action to recover damages for personal injuries received by the plaintiff, a minor, in consequence of an alleged want of a sufficient railing on the highway. The plaintiff’s evidence tended to prove that she was returning from school, in June, 1854, to her father’s house; that she passed on to a side-walk elevated some eleven feet above the ground, on the outside of the way; that she stopped and leaned against a post to which the railing had been nailed, or against the railing, and that the railing gave way, the same having been loose and swinging for some time, and she was thrown to the ground and severely injured. It was admitted that the defendants were bound by law to keep the way in repair; that the railing was defective, and that the defendants had reasonable notice thereof. The evidence on the part of the defendants tended to prove that the plaintiff had got possession of a bottle from a lad by the name of Robbins; that she ran with the bottle; that he pursued her; that she got upon the side-walk and was leaning against the defective railing, when he came up and seized the bottle; that he tried to pull it away from her; that he let go of the bottle, when she sallied back against the railing, and this giving way, she was precipitated to the ground. There was also evidence on the part of the plaintiff tending to rebut the ground assumed by the defence. The defendants contended that they were not by law required to prepare their road for a play-ground for children, and that if the plaintiff at the time of the accident was using the highway as a play-ground, and not as a traveler, she could not recover, and requested the Judge so to instruct the jury, which instruction the Judge refused to give. The Judge instructed the jury, that, by law, the road is to be kept safe and convenient only for the use of travelers; but the law does not define for what purposes it may be traveled, whether for business or pleasure, or work or play, provided the use of it, at the time, is lawful, and the person traveling on it is not using it in a manner prohibited by law, as by traveling on the Sabbath for any purpose other than necessity and charity; that the plaintiff may recover, being otherwise entitled to, notwithstanding that she and others were jointly using the way by passing over it for purposes of sport, provided that in so using it there was no want of ordinary care on her part; that is to say, that if, in passing over the road or side-walk, the plaintiff did no act which a prudent person in the exercise of ordinary care might not have done, or omitted no act which ordinaiy care required her to do. But if the injury was not occasioned through the defect in the way alone, or if the want of ordinary care on her part, or any other cause for the existence of which she was in fault, at all contributed to the injury which she received, she cannot recover. The jury were further instructed, that they would determine from the whole evidence in the case, whether the plaintiff was playing or scuffling at the time of the injury, or not; and also, whether in passing over the side-walk, she stopped to lean against the post or railing, or not; and if they found she did so, in either particular, they would then determine whether it was or was not safe to do so in such a place, and whether she did or not do any thing which a prudent person in the exercise of ordinary care might not have done; and that the mere fact that she did any of these things while passing over the road or side-walk will make no difference in regard to her right to recover, (if she be otherwise entitled,) provided the jury find that in so doing, and in all that she did, there was no fault or want of ordinary care on her part. The defendants further requested the Judge to instruct the jury that if the injury was wholly or in part the result of playing or scuffling between plaintiff and any other person or persons, she cannot recover. This instruction the Judge declined to give, but did instruct them that if they were satisfied of the existence of the way, that it was defective and unsafe, that the defendants had reasonable notice thereof, and that the defect in the railing was the sole cause of the injury, it would make no difference with the plaintiff’s right to recover, even though the plaintiff did play and scuffle with other children in passing over the road, provided that the jury were satisfied that in such playing and scuffling there was no want of ordinary care in passing over the way on her part, which contributed to the injuries she received; and ordinary care was such care as persons of common prudence usually exercise, and the burden of proof was upon the plaintiff to satisfy thorn of this fact, as well as all others necessary to entitle her to recover in the case. The jury returned a verdict for the plaintiff. To the foregoing instructions and refusals to instruct, the defendants excepted. In suits of this character, the plaintiff is required, unless the facts are admitted, to show: — 1. That the highway was not safe and convenient; — 2. That the plaintiff exercised ordinary prudence and care; and, — 3. That the injury was occasioned by the defect in the highway alone. Moore v. Abbott, 32 Maine, 46; 2 Cushing, 604. In the case at bar, the existence of the way, the liability of the city to repair, the existence of the defect causing the injury, and reasonable notice thereof to the defendants, are admitted. There is likewise no pretence that the injury would have been sustained, if the city had not so permitted their road to be out of repair. It remains, then, for the plaintiff to show that at the time of receiving the injury, she was in the use of ordinary care and prudence, and that the injury was occasioned by the defect alone. That the plaintiff was in the use of ordinary care and prudence, must be considered as fully proved, for the Judge instructed the jury that “the burden of proof was upon the plaintiff to satisfy them of this fact,” and the whole tenor of the instructions is, that without full and conclusive proof of this fact the plaintiff cannot recover. The defendants, however, claim to be exempt from liability for such damage in this case, because, as they say, the plaintiff, at the time of the accident, was at play in said highway, and not a traveler, and therefore not a person for whose use they were liable under the statute to keep the way in repair. They accordingly requested the Judge to instruct the jury, “that they were not by law required to prepare their road for a play-ground for children, and that if the plaintiff at the time of the accident was using the highway as a play-ground, and not as a traveler, she could not recover.” This instruction, the Judge refused to give, but did instruct them “that, by law, the road is to be kept safe and convenient only for the use of travelers.” The jury must, therefore, have been satisfied that the plaintiff, at the time of the accident, was a traveler; .otherwise, under the instructions, they could not have given her a verdict. There was, therefore, no error in the refusal of the Judge to give the first requested instruction. The counsel argued that the plaintiff was a “traveler,” within the language and intent of the Revised Statutes, c. 25, § § 57 and 89; and cited 36 Maine, 398. The only limitations or conditions which the law attaches to the right of any person to recover the damages by him received in such a case, are, that the injury must be caused by the defect alone, and that such person must be in the use of ordinary care. 32 Maine, 46. The plaintiff was on her way home from school. No one will deny the liability of the town to keep their streets safe and convenient for scholars traveling over them for such a purpose; and the plaintiff having been proved to be in the use of ordinary care, and the injury being caused by the defect alone, the requested instructions relating to the plaintiff’s playing, became unimportant and unnecessary, and were rightfully withheld by the presiding Judge.