Lane v. City of Lewiston

• Decision Date: 25 January 1898
• Parties: LANE v. CITY OF LEWISTON.
• Court: Maine Supreme Court

39 A. 999

91 Me. 292

LANE

v. CITY OF LEWISTON.

Supreme Judicial Court of Maine.

Jan. 25, 1898.

(Official.)

Report from supreme Judicial court, Androscoggin county.

Action by George W. Lane against the city of Lewiston. Judgment for defendant.

This was an action on the case to recover damages for an injury to the plaintiff on June 18, 1896, while driving easterly along Pine street, in the city of Lewiston, caused by the fright of his horse at a road machine being propelled by steam westerly along the street, under the direction of the street commissioner of the city of Lewiston, and being used in repairing the street. The plaintiff claimed that the evidence showed the machine, with its puffing, escaping steam and motion, frightened his horse, so that he ran away and threw the plaintiff upon the street and severely injured him. The plaintiff further claimed that it was customary to place a bar across the street at either end when the steam roller was being used, to prevent people from traveling along the street in proximity to the machine, and to warn them of the danger; and on this particular day nothing of the kind was done to stop travel on the street while the machine was being used, and that the street was left open, and the public had no notice until they were in the street, top late to turn back.

W. H. Newell and W. B. Skelton, for plaintiff.

Harry Manser, City Sol., for defendant.

FOSTER, J. Action on the case to recover damages for an injury to the plaintiff while driving easterly along Pine street in the city of Lewiston, caused by the fright of his horse at a road machine, or steam roller, which was being propelled by steam westerly along the street under the direction of the street commissioner of the city of Lewiston.

The case comes before the court on report, and two questions only need be considered in determining the rights of the parties: First. Was the steam roller, under the circumstances, a defect for which the city is responsible in this action? Second. Was the plaintiff himself in the exercise of due care at the time the accident occurred?

Both of these questions, we think, must be answered in the negative.

The machine was in operation at the time for the purpose of repairing one side of the street, leaving the other side open and unobstructed for the passage of travelers upon it. This appliance is one of the most modern and useful in building and maintaining permanent and durable streets. The city is bound and obliged by law to keep its streets safe and convenient, and this is one of the instrumentalities obtained by the city at large expense for that very purpose. Certainly there can be no liability on the part of a city or town for using the means necessary and proper for carrying out its duty in this respect, where notice of such use has been brought home to the traveler before an injury has occurred in consequence of such use. Such obstructions, while they may necessarily impede travel over the street to a greater or less extent, cannot constitute a defect within the meaning of the statute, and neither can the legitimate and proper use of such appliances afford any ground for a recovery. To be of any use whatever, the machine must be operated, and the necessary...