51 Me. 127 (Me. 1862), Moulton v. Inhabitants of Sanford

Citation:51 Me. 127
Opinion Judge:DAVIS, J. APPLETON, C. J.
Attorney:Kimball & Miller, for the plaintiff. Low, for the defendants.
Judge Panel:CUTTING, KENT, WALTON and BARROWS, JJ., concurred. APPLETON, C. J., RICE, and DICKERSON, JJ., dissented.
Court:Supreme Judicial Court of Maine

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51 Me. 127 (Me. 1862)




Supreme Judicial Court of Maine.


          If there are two efficient, independent proximate causes of an injury sustained by a traveller upon a highway, the primary cause being one for which the town is not responsible, and the other being a defect in such highway, the injury cannot be said to have been received " through such defect; " and the town is not liable therefor. And it makes no difference that the traveller himself was in no fault.

         EXCEPTIONS from the ruling of GOODENOW, J.

         This was an action on the CASE to recover for personal injuries, and for damages to plaintiff's horse and wagon, alleged to have been occasioned in consequence of a want of railing on a bridge in the highway in the defendant town.

         Kimball & Miller, for the plaintiff.

         Low, for the defendants.

         The facts are sufficiently stated in the opinion of the Court, which was drawn up by DAVIS, J.

         The plaintiff, according to his own testimony, was crossing a bridge over a narrow stream in the town of Sanford, when his horse was frightened by some animal jumping into the water. The bridge was of sufficient width, and well built; but there was no railing. The horse being thus frightened, and unmanageable, ran so near the edge that the body of the wagon was detached from the forward wheels, and thrown off into the stream.

          As the primary cause of the accident,--not remote, but proximate and efficient--was one over which the inhabitants of the town had no control, and for which they were not responsible, no argument would seem to be necessary to show that they ought not to be held liable, even if the question

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were new. But the case is clearly within the principle laid down in Moore v. Abbott, 32 Me. 46.

         That case was tried by SHEPLEY, C. J.; and he instructed the jury " that the town was not liable unless the accident occurred, and the injury was occasioned, by the defect in the way or bridge alone; and that, if the accident happened by the joint effect of a defect in the way, and a defect in the harness, rendering it unsuitable or unsafe, although such defect were not known, and the plaintiff was not in fault for want of knowledge, he would not be entitled to recover." These instructions were sustained, on exceptions, by the full Court, in an opinion the intrinsic force of which it will not be easy to overturn. As the extracts here quoted are from the instructions given to the jury, and not from the opinion of the Court, they cannot be called the dicta of the Judge who delivered it.

         This decision has never been questioned by the Court in this State. It is referred to and recognized in Coombs v. Topsham, 38 Me. 204; and in Anderson v. Bath, 42 Me. 346. The question, therefore, might be considered as settled, beyond controversy. But, as it is still a subject of discussion in other States, it may be well to re-examine it.

         Two causes, both of them proximate, may concur to produce an injury. When one of these is a defect in the highway, and the other any fault of the plaintiff, it is not claimed that he can recover. But when one of the causes is a defect in the way, and the other is some occurrence for which neither of the parties is responsible, is the town liable to the party injured?

         This question was raised in the case of Hunt v. Pownal, 9 Vt. 411. It was afterwards before the courts in Maine and in Massachusetts, in 1849 and 1850, neither being aware that it was before the other. In Massachusetts the Vermont decision was at first sustained. Palmer v. Andover, 2 Cush. 600. In this State, in the case before cited, it was declared to be unsound.

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          Towns are liable for injuries to tavellers only when they are received " through a defect" in the way. When any other efficient, independent cause contributes directly to produce the injury, it cannot with certainty be said to have been received through the defect. For in such case the other cause might have produced the injury if there had been no defect; and the damages caused by both jointly cannot be apportioned between them. Such has been understood to be the rule in this State.

         If there is any reason why this rule should be relaxed in other cases for damages caused by negligence, it does not apply to such suits against towns. These corporations do not, like railroad companies, undertake to carry passengers for hire. There is no privity between a town and the travellers who pass through it. The town is under no obligation to them, arising from any contract, or any natural relation. If the roads are not safe, the neglect is of a public duty only, having no foundation except in a special statute. It was proper that a remedy should be given for injuries caused solely by the neglect of towns, not only as an indemnity to individuals, but as an inducement to greater diligence and care. But the statute is in its nature penal, as well as remedial, and ought to be construed strictly. The language imposing the liability does not fairly embrace any case in which any other efficient cause, besides the defect in the way, contributes to produce the injury.

          Nor is there any necessity, in order to make the remedy available, to extend the liability by construction. The sympathy of juries is always strongly in favor of the person injured. The danger of abuse is not in limiting the remedy, but in enlarging it. If towns are to be held liable for injuries occasioned in part by other causes than their neglect, they will be made practically insurers of the safety of travellers against all accidents, however inevitable, if they happen upon a defective road, and are not caused by their own carelessness. This could never have been the design of the statute. All persons are liable to meet with accidents and

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injuries, at home, and abroad. This is no reason why they should call upon the community for compensation. Misfortune alone, though it happens to a traveller upon the highway, gives him no valid claim against the town in which he meets it, unless it is reasonably certain that it would not have occurred but for the neglect of such town.

         The case of Palmer v. Andover concedes that this certainty should always be established; but the rule laid down in that case does not secure it. It assumes such certainty under circumstances which render it impossible. It was probably for that reason that one member of the Court, generally understood to have been Chief Justice SHAW, dissented from the opinion. The law is there stated as follows:--

         " When the loss is the combined result of an accident, and of a defect in the road, and the damage would not have been sustained but for the defect, although the primary cause be a pure accident, yet, if there be no fault on the part of the plaintiff, and the accident...

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