McCarthy v. City of Portland

• Decision Date: 05 January 1878
• Citation: 67 Me. 167
• Parties: JEREMIAH C. MCCARTHY v. CITY OF PORTLAND.
• Court: Maine Supreme Court

67 Me. 167

JEREMIAH C. MCCARTHY v. CITY OF PORTLAND.

Supreme Judicial Court of Maine.

January 5, 1878

ON EXCEPTIONS AND MOTION from the superior court.

CASE for injury to plaintiff's horse from defective highway.

PLEA not guilty, under which, evidence was introduced tending to show that the plaintiff was racing the horse, and matching it for speed at the time its leg was broken.

Upon that point, Judge Symonds instructed the jury as follows:

" Highways are only to be safe and convenient for travelers. If a man once intentionally starts upon a race having that object in view, and not any legitimate purpose of travel, whether he has reached the point where the horses are to be put to full speed or not, from that moment he ceases to have any rights against the town as a traveler upon the highway. The intention to race, accompanied by the fact that the man has actually started upon the race, prevents his recovery in the action. It matters not if he has started at a walk, or at a very slow rate of speed, if the race is begun if he has started upon the race and is in the act of racing whether he sees fit to put his horse to full speed or not is immaterial; the race having begun, he having intentionally joined in it, the actual speed at which he is driving is immaterial; he has ceased to have the rights of a traveler, and his use of the highway for that purpose is not legitimate."

The verdict was for the defendants; and the plaintiff alleged exceptions and also moved to set aside the verdict.

A. A. Strout & G. F. Holmes, for the plaintiff.

H. B. Cleaves, city solicitor, for the defendants.

PETERS, J.

We think the judge at the trial gave a correct ruling upon the point raised in this case, and presented the idea, involved in it, in apt and appropriate words. To enable the plaintiff to recover, he must have been " a traveler." That is not all. He must have been traveling for some purpose or other for which streets are required to be constructed and kept in repair. A person may be a traveler, but not such within the contemplation of the statute, which gives compensation for an injury occasioned by a defect in a highway. He may be within or without the protection of the statute, and still be a traveler. The distinction between what is a legitimate use of the streets or the contrary, is a nice and narrow one, and still it is an appreciable and palpable distinction. A boy may be within the protection of the statute while running upon a street, if going to or returning from school; but not, if participating at the time in a game of ball being carried on in the highway. He might be a traveler, perhaps, under some circumstances, while sliding down hill on his way to school; but not, if merely engaged in sliding down hill as a pastime and sport. The statute requires that the way shall be " safe and convenient for travelers with horses, teams and...