
    Seward vs. The Town of Milford.
    Hiqhwats : liability of towns.
    
    1. In an action for injuries from a neglect to repair a high road, it appearing that plaintiff received the injury while on the usual traveled track, near the middle of the highway, in the evening, in ignorance that the same had been largely washed away several weeks before, and atemporary track used turning off into a ditch at one side of the highway : Eeld, that it was not error to instruct the jury that plaintiff had a right, to presume that the road was reasonably safe in its surface and margin, and if he was injured in consequence of its not being so, he could recover.
    2. Such instruction, upon the facts of the case, did not imply that the town was bound to keep the whole width of the highway in such a condition that teams could pass over it safely in every part.
    S. Nor was it error to instruct the jury “that highways are made to be traveled by night as well as by day; and that plaintiff had a right to presume that the ordinary traveled track, as it had been for years traveled, was reasonably safe, unless he had notice to the contrary; and if he was in the traveled track, and it was in want of repair, and had been so left negligently by the town,” it was liable for damages sustained by him in consequence thereof, if he used ordinary care.
    
      i. Where the usual traveled track of a highway has become dangerous, the town is-bound either to repair it at once, or at least to maintain suitable guards to prevent persons traveling on it.
    APPEAL from the Circuit Court 'for Jefferson County.
    Action for injuries to the person of the plaintiff received in consequence of the condition of a public road in the defendant town. The facts are stated in the second paragraph of the opinion. The circuit court instructed the jury, at defendant’» request-, as follows : “ 1. If plaintiff, in passing the highway in question, acted with ordinary caution, and the highway was in want of repair, and in consequence of that want of repair plaintiff was injured, he is entitled to recover. 2. Plaintiff had a right to presume that the road was reasonably safe in its surface and margin; and if the highway was not reasonably safe in its surface and margin, and in consequence of the road being so in want of repair plaintiff was injured, he is entitled to re- * * 4. It was the duty of the town to have proper cover. guards and protections against accident, and if it did not Rave them, and plaintiff was not negligent on his part, he is entitled to recover. 5. Highways are made to travel by night as well as by day, and plaintiff had a right to presume that the ordinary traveled track, as it had been for years traveled, was reasonably safe, unless he had notice to the contrary; and if he wss in the traveled track, and it was in want of repair, and had been so left negligently by the town, they are holden to the plaintiff for the damages he sustained, if he used common or ordinary care.”
    The defendant asked the following instructions, among others : “ 3. If the town used ordinary care and diligence under the circumstances of the case, in making the road passable, it is not liable for the injury.” “5. If the town put up proper guards to notify and keep travelers from going over the dangerous track, and kept them up until the night of the accident, and such guards were removed by some person in the dark, it is not liable.” “ 6. If there was then a plain traveled track, and plaintiff diverged from it without necessity, or if the horses turned from a natural instinct or from inability to see on account of the darkness, the town is not liable.” The court refused the sixth instruction; gave the third modified by inserting the words “ safe and ” before the word “passable;” and gave the fifth modified so as to read as follows: “ 5. If the town had not had time to repair said road, it might put up proper guards to notify and keep travelers from going over the dangerous track; and if it did, and kept up the same until the night of the accident,' and such guards were removed by some person in the dark, the town is not liable; but it is for you, if you find the guards testified to were up at dark, to say whether they were of that substantial nature to be proper.”
    The court also, in its general charge, gave the following instructions : “ The material inquiry for you upon the question of the care and diligence of the plaintiff at the time of the accident is, did Re use such caution to prevent accident as persons of ordinary care and diligence are in the habit of taking in the night time, and under the circumstances of this case, to prevent accident?” “ The main track where the travel is at the time of the accident, is not the whole highway, and it is not always sufficient that such main track is in suitable repair to be passable. The condition of the road at the side should be such that there is not danger of a person, either by night or by day, who is in the exercise of ordinary care and diligence, driving off such main traveled track; and especially is this the case when, by reason of recent changes in the traveled track, a new track has been adopted, and there is danger of persons, from their previous acquaintance with the old track, in the night time, when they cannot well discover the condition of the road, following the old track.” A number of other instructions were given, which are not important here.
    Verdict and judgment for plaintiff; and defendant appealed.
    
      D. F. Weymouth, for appellant,
    to the point that the court erred in modifying the third instruction asked by defendant as above stated, cited R. S., ch. 19, secs. 16, 22, 23, 26, 33, 47,49. As to the last instruction in the general charge, as above given, he cited Week v. Turnpike Go., 20 Conn., 134; Smith v. Smith, 2 Pick, 621; Howard v. N. Bridgwater, 16 id., 189; Tisdale v. Norton, 8 Met., 388; Farnham v. Concord, 2 N. H., 390; Rice v. Montpelier, 19 Vt., 470, and cases there cited.
    
      Gferrit T. Thorn, for respondent
   Cole, J.

We do not think there is any error of which the town can complain either in the instructions which the court gave the jury on the trial of this cause upon its own motion, or at the request of the plaintiff; or in the modification of the third and fifth instructions asked by the defendant; or in the refusal to give the sixth instruction. These instructions are too numerous to he noticed in detail, but it is very evident they should he considered with reference to the facts of the case before the jury and not with reference to some supposed case presenting a different state of facts, and to which they might not so properly apply. A brief glance at a few leading facts of the case will amply vindicate the correctness of the ruling of the court upon the instructions. The evidence satisfactorily shows that the plaintiff was injured while driving along the main traveled track in the exercise of proper care, solely in consequence of the defect in the highway which the town was either bound .to repair at once, or at least to keep up some suitable guards to prevent travelers from going over the dangerous track. This was the clear duty of the officers of the town. Now it appears from the evidence that this portion of the road where the injury was sustained, some five or six weeks before the accident, had been washed away or gul-lied out on each side by heavy rains, so as to leave a strip only two or three feet wide in the middle of the track. In this condition the highway was dangerous, and almost impassable for double teams and wagons at this point. The officers of the town knew of the condition of the highway, and had made a temporary road in the ditch up the hill along the usually traveled track. This new road however was rather blind, and was liable to be missed where it turned into the ditch from the usually traveled track, except by one familiar with the highway at that point It appears that the plaintiff had not passed over the road for some months, and was ignorant of its dangerous condition. He says, in his testimony, that he came •along to this part of the highway in the early part of the evening on the 12th of May last, with his team and wagon loaded with goods, boxes and barrels ; that it was cloudy and dark, so that it was only by close observation he could see where the track was; that he did not observe that there was a road which went off into the ditch at the foot of the hill, but supposed he must .keep the main traveled track in order to avoid deep gullies ou each, side of the road at that place. When he got about half way up the hill, the wheel on the right hand side dropped down into the gully three or four feet deep, and threw him and his load into the ditch, where his right leg was fractured below the knee, both bones being broken, and other injuries were sustained. In view of evidence of this character, the court, among other things, charged the jury, at the request of the plaintiff, that the plaintiff had a right to presume that the road was reasonably safe in its surface and margin; and that if the highway was not reasonably safe in its surface and margin, and in consequence of the road being so in want of repair the plaintiff was injured, then he was entitled to recover. This instruction is sharply criticised by the counsel for the town, who insists that it was equivalent to telling the jury that the plaintiff had a right to presume that the entire surface of the road was smooth, safe and convenient for traveling purposes, and that the law imposed upon the town the obligation of making the whole width of the road, four rods wide, smooth and safe. But we do not think this portion of the charge could have been misunderstood by the jury, or that it is fairly open to the criticism passed upon it. Of course, the court was laying down the law applicable to the facts before the jury, and had no occasion to consider whether it was the duty of the town to make the whole surface of the road from one fence to the other safe and suitable for use as a highway. The plaintiff was not injured by getting into a ditch outside of and beyond tbe usually traveled track. He was passing along this track on the main traveled part of the highway; and the question is, there being nothing to warn him that the road was dangerous — had he a right to assume that he could continue his course ? We think he might so assume, and that there was no error in the instruction when considered in connection with the facts of the case.

Again, it is claimed that the court erred in charging the jury that highways are made to be traveled by night as well as by day; and that the plaintiff had the right to presume that the ordinary traveled track, as it had been for years traveled, was reasonably safe; and that if he was in the usually traveled track, and it was in want of repair, and had been so left negligently by the town, then the town was liable for any damages the plaintiff had sustained in consequence of the defect in the highway, providing the plaintiff used common and ordinary care, and had no notice of the condition of the track. It is said that no person has a right to presume that the traveled track of a highway has not been changed, especially after a great freshet, since the track upon all highways in a new country is constantly changing. It was the duty of the town to keep the highway in a condition so that it could be safely and conveniently used by the public with teams and carriages, and if for any reason the town was unable to repair the road when it became dangerous and impassable, or had been compelled to change the track, it could easily have taken precautionary means to protect the public against the danger on the old track. And this is in substance what the court told the jury in the fifth instruction asked by the town, which it gave with a modification. That is, the jury were charged, that if the town had not had time to repair the road, it should have put up and kept up proper guards at that place to notify and prevent travelers from going over the dangerous track; and that if they were satisfied from the evidence that the town had done this, and kept such guards until the night of the accident, and the guards were removed by some one in the dark, they were instructed that the town was not liable for the injury which had happened, providing the guards were of a substantial and proper nature. What these guards should be, the court did not attempt to tell the jury; but it is obvious that they should be some railing, fence or other means suitable to protect the public, and notify travelers that the road was unsafe.

"We see no error in the rest of the charge of the conrt, and think the judgment must be affirmed.

By the Oourt — Judgment affirmed.  