Mobus v. Town of Waitsfield

• Citation: 75 Vt 122,53 A. 775
• Court: Vermont Supreme Court
• Decision Date: 27 December 1902
• Parties: MOBUS v. TOWN OF WAITSFIELD.

53 A. 775

75 Vt 122

MOBUS

v. TOWN OF WAITSFIELD.

Supreme Court of Vermont. Washington.

Dec. 27, 1902.

Exceptions from Washington county court; Start, Judge.

Action by Kate Mobus against the town of Waitsfield. There was judgment overruling a demurrer to the declaration, and defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

Dillingham, Huse & Howland and Z. S. Stanton, for plaintiff.

Frank Plumley, for defendant.

TYLER, J. The declaration alleges, in substance, that while the plaintiff's husband and son were passing over a highway bridge in defendant town, upon a loaded cart drawn by two horses, by reason of the insufficiency and want of repair of the bridge, which it was the defendant's duty to maintain, it broke, and the horses, the loaded cart, and the plaintiff's husband and son were precipitated to and among the broken fragments of the bridge to the waterway beneath the bridge, and that her husband was there fastened beneath the fragments of the bridge, the horses, cart, and load, and unable to extricate himself; that he was greatly Injured, and was in danger of further injury; that while he was so situated the plaintiff went to his assistance; and that while she was upon the bridge and its fragments, extricating her husband, she was kicked and injured by the horses as they floundered in the water way and upon her husband, and that she was also injured by the falling fragments of the bridge and cart. The defendant demurred to the declaration, and assigned several causes of demurrer, which will be considered. The court below pro forma overruled the demurrer, and held the declaration sufficient, to which the defendant excepted.

The plaintiff's right to recover rests upon no common-law liability on the part of the town, for towns are created for governmental purposes, and private actions do not lie against them at common law for neglect of duty, though an individual suffers damages by reason of such neglect if the plaintiff is entitled to recover, it is by reason of the liability imposed upon the defendant by V. S. 3490, which must be strictly construed. Its provisions are the limits of the defendant's liability. The plaintiff must have been a traveler upon the bridge when she received her injury, and the insufficiency of the bridge must have been the proximate cause of the accident, no want of ordinary care on the part of the plaintiff contributing thereto. This is the doctrine of Baxter v. Turnpike Co., 22 Vt. 114, 52 Am. Rep. 84, and of many subsequent cases. Was the plaintiff a traveler? The language of the statute is: "If damage occurs to a person or his property by reason of the insufficiency or want of repair of any bridge or culvert which the town is liable to keep in repair, the person sustaining damage may recover the same in an action on the case." The necessary implication is that the highways are for the purpose of travel, and that the right of the public is the right of transition over them from place to place. This is the construction given the statute in Baxter v. Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84, and in Sykes v. Town of Pawlet, 43 Vt. 446, 5 Am. Rep. 595. In the statutes of other states this is so expressed. The injury must be to the person or property of the traveler. Stickney v. Town of Maidstone, 30 Vt. 738. This does not mean that a person must be in actual motion at the time of the occurrence of the accident. As illustrated by Doe, C. J., in Varuey v. Manchester, 58 N. H. 430, 40 Am. Rep. 592, a man might be on his way for a physician, but, meeting him, and while stopping and conversing with him, receives an injury through the insufficiency of a highway. The town might be liable to him as a traveler. Britton v. Inhabitants of Cummington, 107 Mass. 347, was where a carriage occupied by several persons and drawn by two horses was passing along the highway, but was stopped by the driver to enable him to pick berries by the wayside, when one of the horses threw his check rein over a blinder of the other horse's bridle, and when the driver attempted to unhitch it one horse and then the other backed, and the carriage was suddenly thrown down an embankment Held, that the question whether the plaintiff had ceased to be a traveler at the time of the accident was for the jury. There are numerous decisions in the books upon the question whether, in the circumstances of given cases, persons were travelers or not; but they all come to this: If the purpose for which a person is upon a highway is for transit from one place to another, he is a traveler, and not otherwise. In Massachusetts, under a statute similar to ours, it has been repeatedly held that, where a person is using a highway simply for the purpose of play, and receives a personal injury by reason of a defect therein, he cannot maintain an action to recover damages. Accordingly it was held in Tighe v. City of Lowell, 119 Mass. 472, that, where a child went upon a highway merely to play, and there received an injury by means of a defect therein, there could be no recovery as the child was not a traveler. And in Lyons v. Inhabitants of Brookline, 119 Mass. 491, a child was permitted to go upon a highway to walk, but sat down upon a sidewalk, where other children were playing, and was Injured by the falling of a stone not properly secured. It was held that she was not a traveler. In McCarthy v. City of Portland, 67 Me. 167, 24 Am. Rep. 23, the plaintiff being injured by the insufficiency of a highway while racing his horse upon it, held, that he was not a traveler within the meaning of the statute; and in Hardy v. Town of Keene, 52 N. H. 370, that the terms "travel," "traveler," and "traveling" have no technical meaning, but that the whole matter is within the exclusive province of the jury, under such instructions of the court as the circumstances of the case require. Bliss v. Inhabitants of South Hadley, 145 Mass. 91, 13 N. E. 352, 1 Am. St. Rep. 441, was where a child about two years old, in charge of an older child, ran across the street, and fell into a gutter at the side of the street, the older child meanwhile watching other boys at play. Held, that it was competent for the jury to find that the children were travelers on the highway. See Gulline v. City of Lowell, 144 Mass. 491, 11 N. E. 723, 59 Am. Rep. 102. In Hunt v. City of Salem, 121 Mass. 294, a boy, on his way home, crossed the street to look at toys in a shop window, and stood looking at them four or five minutes, and was injured by catching his foot in a grating as he turned away to resume his walk. Held, that he could recover. In Graham v. City of Boston, 156 Mass. 75, 30 N. E. 170, four minors were going home, playing tag as they went. They stopped, and then one went ahead of the rest, and came in contact with a live wire, and received injuries, and when the others went to his assistance they were injured. Held, that all could recover. Devens, J., stated the rule in Harwood v. Inhabitants of Oakhan, 152 Mass. 421, 25 N. E. 625: "We have assumed 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 while engaged in any of the pursuits or duties of life." In the present case the plaintiff went upon the bridge for a legitimate purpose, and, though she stopped to assist her husband, it cannot be held as a matter of law that she was not a traveler upon the bridge. But the defendant contends that the plaintiff was not a traveler upon the bridge, for the reason that it was broken down at...