Harwood v. Oakham
| Decision Date | 27 October 1890 |
| Citation | 152 Mass. 421,25 N.E. 625 |
| Parties | HARWOOD v. OAKHAM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.A. Gile and A.M. Taft, for plaintiff.
Rice King & Rice, for defendant.
We assume that the word "traveler," which is found in the statute, is not there used in any narrow or restricted sense, and that the highway is to be kept safe and convenient for all persons having occasion to pass over it while engaged in any of the pursuits or duties of life. Blodgett v Boston, 8 Allen, 237. If, therefore, the plaintiff was using that portion of the highway which the defendant town was bound to keep in repair to aid his servant, who, while executing his orders, had fallen into the brook, he was doing so lawfully, and if injured, while exercising due care himself, by a defect in the highway, he might recover damages for the injury thus sustained. If, also, while using the way with due care for this purpose, he was induced to leave or betrayed into leaving its traveled limits by reason of the absence of a barrier, which it was the duty of the defendant to have maintained in order that the way there should be reasonably safe, an injury thereby occasioned to him by a sudden descent in its immediate vicinity, occasioning a fall, or in any similar manner, this would be sufficient ground for recovery. Palmer v. Andover, 2 Cush. 600; Snow v. Adams, 1 Cush. 443; Hayden v. Attleborough, 7 Gray, 338; Sparhawk v. Salem, 1 Allen, 30; Puffer v. Orange, 122 Mass. 389; Barnes v. Chicopee, 138 Mass. 67. If, in traveling near the edge of a way, there might be danger of being precipitated down an embankment or into the water, and a railing or other barrier would be necessary to make traveling thereon safe, but the absence of such barrier in no manner contributed to the accident, and the existence of it would not have prevented the injury, the town would not be responsible by reason of its absence. Palmer v. Andover, ubi supra. As the defendant is not bound to keep the whole limits of the way, as located, in repair, but only so much as is needed to accommodate the travel, if a traveler voluntarily leaves the reasonable limits set apart for travel for his own purpose, however laudable, he does not become entitled to the rights of a traveler in the portion of the way outside those limits, and cannot maintain an action for the injury which he sustains on account of defects therein.
In the case at bar, the plaintiff, according to his own testimony, was acquainted with the bridge over the stream, by falling from which the injury to him was occasioned. It was a culvert or bridge covered with gravel, with faced abutments. The abutments extended 2 feet beyond and outside of the rails which marked the traveled part, and it was 21 feet between the rails. The plaintiff, who was conducting a drove of cattle, and who had himself passed over the bridge, became anxious lest a boy, whom he had sent back to prevent some of the cattle from straying homewards, had fallen into the water, and returned to look for, and, if necessary, to help, him. He knew of the existence of the water, and in his examination in chief says: "I heard him" (the boy) In his cross-examination he says: He then describes his reaching down for the boy, and his losing his balance, and again adds: "I knew I was out of the traveled part of the highway." There was also evidence that the rail near which the plaintiff fell off was partially down at one end, and so that it could be stepped over.
With this evidence, the plaintiff could not be held to be...
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