Commonwealth v. Inhabitants of Wilmington

Wells, J.

This indictment is found under the Gen. Sts. c. 44, § 21, upon the charge that the life of the plaintiff’s intestate was lost by reason of a defect in, or “ want of suitable rails on ” the way upon which he was travelling. We find nothing in the case to sustain that proposition, except the fact that his life was lost in a manner and under circumstances which render it • probable that a substantial railing might have prevented the casualty.

But the fact that an injury has been sustained, by reason of a certain condition of the highway, is not sufficient to establish that condition as a defect for which the town may be charged, either criminally or by civil action. Howard v. North Bridgewater, 16 *601 Pick. 189 . Macomber v. Taunton, 100 Mass. 255 . Towns are not required by law to fence their highways; nor to provide barriers to prevent travellers from driving out of the limits, or unmanageable horses from escaping therefrom. Railings are required only where some steep bank or other dangerous object or place exists so near to the travelled road as to expose persons travelling thereon to injury through some of the mischances incident to such use of the road, or reasonably to be anticipated therefrom. Spa rhawk v. Salem, 1 Allen, 30 . Adams v. Natick, 13 Allen, 429 . Murphy v. Gloucester, ante, 470.

No such object or place, rendering the highway unsafe for use for the purposes of a highway, was shown to exist. The fault complained of was rather that the town did not maintain, near the margin of the pond, but outside of the limits of the highway, suitable barriers for the protection of those who might avail themselves of the opportunity thus afforded them to go out of the limits of the highway for the purpose of watering their horses in the pond. But the statute does not thus extend the obligation nor the liability of towns. The safety and convenience, required to be secured for the public ways, relate only to their use as ways for the purposes of travel thereon. Richards v. Enfield, 13 Gray, 344 . Stickney v. Salem, 3 Allen, 374 . The question whether they are safe and convenient, or otherwise, must be determined with reference to that purpose and use. Facilities to be enjoyed outside of the limits of the way are not surrounded by the same securities which the statutes provide for the way itself.

The counsel for the prosecution appeals to the common law doctrine, which holds a party liable in damages to one who has been induced to enter upon a place of undisclosed danger, by invitation, express or implied, and thereby suffered injury. But even if the common law test of civil liability, as applied in the cases cited, were applicable here, it would not make the town chargeable upon these facts. There was no concealed danger. The character of the place was obvious. There was nothing to mislead or entrap the party; nothing to take him by surprise, except the extraordinary conduct of his horse. That may be said to be the real and only cause of the accident. Of that, the party himself must bear the consequences. Verdict set aside.