Leslie v. City of Lewiston

Danforth, J.

In this case the defendants requested the court to instruct the jury, “that to entitle the plaintiff to recover she must at the time of the injury have been a traveller upon the street or highway, and must have been using the street as a thoroughfare; and if she was- returning from the water-closet to the house in the manner shown by her testimony, and was at the time of the injury only about six feet within the located limits of the street, and outside the travelled and wrought portions, and had not entered upon the travelled or wrought part of the street, nor upon any part connected with the travelled and wrought portion, she was not a traveller within the meaning of the law.” This was not given.

From the undisputed facts developed by the plaintiff’s testimony, we think the requested instruction appropriate, and should, at least in substance, have been given.

The statute requires cities and towns to keep their “ways safe and convenient” for travellers only ; and when this is done they have no further duties or responsibilities in relation to them. Hence, when the statute further provides that “any person” who suffers damage through any defect in a way, shall have a remedy, it necessarily refers to that class of persons who were, not only in the lawful use of it, but for whose use and whose safety and convenience it was established. This was settled in Stinson v. Gar diner, 42 Maine, 248.

No question is raised as to the safety and convenience of the *471 wrought part of the street, or of its sufficiency to amply accommodate all the travel having occasion to pass over it. The defect complained of, though within the located limits, was outside of the travelled part of the street. The plaintiff, at the time of the accident, had passed from the house she was then occupying, as a member of her father’s family, to the water-closet, and was on her return to the house. The house stood upon the street, about ten feet from its westerly line, and the water-closet still farther from the street, and in the rear of the south-westerly corner of the house. The defect which caused the injury was a ditch dug along the south side of the house and into the street for the purpose of draining the sink spout and water-closet belonging to the house. It appears that the only occasion the plaintiff had for passing into the street was to go round the drain instead of crossing it. She had not reached, and had no purpose of reaching, the travelled part of the street. She was not using it as a highway, and had no intention of so doing. It was not as a part of the street, even, but as a curtilage of the house. She had appropriated it as a convenience for domestic purposes, as an appurtenant, to the house in which she was residing. She was not, therefore, a traveller, in any such sense as is contemplated by the statute providing for the recovery of damages arising from defects in streets or highways. .

The courts of Massachusetts have gone even farther than this. It is there held, as well settled law, that a person travelling upon the highway and voluntarily turning therefrom to enter upon his own premises, or private way, ceases to be under the protection of the law as soon as he leaves the travelled or wrought part of the way, though an injury happens from a defect within its located limits. Kellogg v. Northampton, 4 Gray, 65 , and cases cited.

In this State the same doctrine is recognized in Dickey v. Maine Telegraph Company, 46 Maine, 483 ; and we have been referred to no ease where any person having voluntarily turned from the travelled path, or not having reached the wrought part and suffering damages by a defect within the located limits of the road, has been allowed to recover of the town. It is true that it has often *472 been held incumbent upon towns to keep the whole width of their ways free from artificial obstructions and defects, but this duty has been imposed only for the protection of such persons as are in tBe use of the wrought part as travellers.

If the house had stood upon the line of the street, and the steps for the purpose of passing in and out had projected into the street, it would hardly be contended that any member of the family, receiving an injury from a defect in such steps while entering into or going out of the house, would be entitled to recover of the city as a traveller upon the highway. A person occupying land adjoining the highway, for the purpose of ploughing up to .the line, might find it convenient to drive his team into the road. In such a case it would hardly be claimed that the town would be under any legal obligation to keep the road “safe and convenient,” or even free from such obstruction as did not naturally exist. These supposed cases do not differ in principle from the one at bar. In each the highway is not used as such, or in any proper sense for the purpose of travelling, but rather as an appurtenant to, or part of, their own private premises..

There is another view of this case which is equally fatal to its maintenance. The plaintiff, at the time of the accident was a minor, a member of her father’s family, and under his care and control. Such a relation made it incumbent upon him to provide her with all safe and convenient means required to enable her to supply such wants and necessities of life, as her state and condition demanded.

The way to and from the water-closet, in the use of which the accident occurred, with its defects and inconveniences, was provided by him as an appurtenant of his dwelling. The defect in this way, which was the alleged cause of the injury, though not of his creation, was continued by his neglect. It is not material that at the moment of the accident she was not under his immediate care and control, or that at the time she was herself in the exercise of ordinary care. It is enough that he required her to use this unsafe way from a neglect to provide any other, and that she was in the *473 use of that which Had been provided by him, to whom alone she could look for such a provision for her wants. Even if the city were responsible to other parties, it would not, under these circumstances, be liable to the father, and his fault is so far attributable to her that if it would bar his right to recover, it would have the same effect upon hers. Holly v. Boston Gas Light Co., 8 Gray, 123 . Exceptions sustained.

Appleton, O. «L, Walton, Dickerson, Barrows, and Virgin, JJ., concurred.