
    Samuel Morse and Wife v. Town of Richmond.
    
      Higluvays. Towns.
    
    Towns owe a statutory duty to travelers, for the breach of which the party injured may maintain an action, to remove from the margins of their highways objects unlawfully deposited there, which, by their frightful appearance, make it unsafe to travel the road with ordinary horses.
    The duty of the town to remove the obstruction from the highway does not attach until they know of it, or ought to know of it, nor while it is upon the highway a reasonable time for the purposes of transportation over it.
    Though a town is not bound to work the whole width of the road where the travel does not require it, yet they have a right to control the whole width and have a corresponding duty. If they suffer objects to remain deposited on the margin which, by their frightful appearance, make the whole road unsafe, they will be liable for such accidents by fright as are the natural result of their neglect.
    Towns are held to a higher responsibility with reference to removing deposits of private property which are placed on the road without right and obstruct public travel by their frightful appearance, than with reference to removing equally dangerous objects which either are incident to the nature of the soil and country or are thrown upon the margin in process of constructing the road.
    The defendants excepted to the ruling of the court that if the hales of hay deposited without right by a railway company upon the margin of the defendants’ highway presented such au appearance that they might reasonably be expected to and naturally would frighten ordinary horses, and the plaintiff’s injury occurred by such fright, the defendant town would he liable, the plaintiff’s case in all other respects being first made out, although the surface and width of the traveled path were faultless. Held, that there was no error.
    Distinction between highway laws of Vermont and Massachusetts.
    Trespass on tbe case for injuries alleged to have been sustained, by tbe plaintiff’s wife, by reason of defects and insufficiencies in. a certain highway in said town of Richmond, which tbe defendants were bound to repair. Plea, tbe general issue. Trial by jury, in Chittenden county, Pierpoint, C. J., presiding.
    On trial tbe plaintiff proved that on June 15, 1864, a freight train, about 7 or 8 o’clock in tbe morning, came up on the Vermont Central railroad, and one .of the cars loaded with bales of 'Lay was on fire ; that to extinguish said fire the railroad employees unloaded said hay on the depot grounds, and scattered some bales over the depot grounds, and some of said bales, partially charred, were, for the purpose of preventing their consumption and further spread of said fire, thrown into the lines of the highway where the injury happened, and close to the principal traveled track, and were ly the defendants suffered so to remain within the lines of the said highway, and close to the said traveled track, and for several hours after one of the selectmen of said town had notice thei’eof, and until after the injury took place.
    Evidence was introduced to prove that where said bales of hay lay, the road was a good, perfect, smooth, and level road, fit and safe for travel in all its parts, more than fifty feet in width, from the place where any of said bales of hay lay, to some buildings on the opposite side of said road, and that teams in passing this place were not confined to any particular path, but traveled at the pleasure of the driver over a space of forty feet in width or more in said road, although the greater part of the travel at that point generally passed near to where said bales of hay were lying at the time of the accident.
    The defendants requested the court to charge the jury that although some of said bales of hay might have been within the lines of the highway, and might by their so being there have frightened the horse, and thereby have caused the injury, yet if 'they further found that, at the place where said bales of hay lay, and at the time when said injury happened, the road was in all other respects made of sufficient width, smooth and level. for the safety of travelers and their teams in passing, and was not in any •respect insufficient or out of repair at the place aforesaid, otherwise than that, by said bales of hay lying within the lines of said highway, as aforesaid, horses might take fright, then the plaintiff's are not entitled to recover.
    But the court refused so to charge, and thereupon the defendants excepted not only to the refusal, but also to the charge given, Which is sufficiently recited in the opinion.
    Section 41 of- chapter 25 of the General Statutes provides that “ If any special damage shall happen to any person, his team, carriage, or other property, by means of the insufficiency or want of repairs of any highway,” the person sustaining such damage shall have a right to recover the same in an action on the case, etc.
    
      Jeremiah French-and F. R. Sard, for the plaintiff,
    cited Kelsey v. Grlover, 15 Vt., 708; 18 Maine, 286; Oassedy v. Stockbridge, 21 Vt., 3.91; Willard v. Newbury, 22 Vt., 458; Batty v. Duxbury, 24 Vt., 155 ; Barton and Wife v. Montpelier, 30 Vt., 650; An-gelí on Highways, § 259, § 261, § 262 ; Winship v. Enfield, 42 N. H., 197; Ohamberlain v. Enfield, 43 N. H., 356 ; Littleton v. Richardson, 32 N. H., 59 ; Dimoclc v. Suffield, 30 Conn., 129; Keith v. Easton, 2 Allen, 552; Kidder v. Dunstable, 7 Gray, 104; Vinal v. Dorchester, 7 Gray, 421; Eoward- v. N. Bridgewater, 16 Pick., 189.
    
      Jacob Maech and S. H. Davis, for the defendants,
    cited Hixon v. Loioell, 13 Gray, 59 ; Smith v. Wendell, 7 Cush., 498; Vinal v. Dorchester, 7 Gray, 421; Shepardson v. Oolerain, 13 Met., 55; ffoward v. N Bridgewater, 16 Pick., 189; Kellogg v. Northampton, 4 Gray, 65 ; Davis v. Dudley, 4 Allen, 557; Marble'v. Worcester, 4 Gray, 395 ; Diclcey v. M. Tel. Co., 46 Maine, 483 ; Farnum v. Concord, 2 N. H., 393 ; Eolley v. W. T. P. Co., 1 Aik., 74; Gflidden v. Reading, 38 Vt., 52; Oassedy v. Stock-bridge, 21 Vt., 391; Kelsey v. Grlover, 15 Vt., 708; Sessions v. Newport, 23 Vt., 9; Kingsbury v. Dedham, 13 Allen, 186; Felch v. Gfilman, 22 Vt., 38; Peoples. Utica Ins. Co., 15 Johns., 358 ; Criswold v. Nat. Ins. Co., 3 Cowen, 96.
   The opinion of the court was delivered by

Steele, J.

This cause has been three times argued. We understand from the case, as well as from the statement of the defendants’ counsel at the first argument, that so far as the liability of the town might depend on the length of time that the bales of hay had been suffered to lie upon the highway, or upon proper notice to the town officers that they were there, the ruling of the county court were such that the defendants took no exception. The case, therefore, stands in this court on precisely the same ground that it would if it were conceded that the hay, which had been unlawfully deposited by the railway company upon the margin of the public highway, had been suffered to remain there an. unreasonable time with the full knowledge of the officers of the town. No question arises in this court upon the plaintiffs’ prudence. The only exception reserved is made to the pro forma ruling of the county court, that even though the surface and width of the traveled track were faultless, and the bales of hay were outside that track upon the highway margin, still the town would — “ the case in all other respects being made out” — be liable if the bales of hay ££ presented such an appearance that they might reasonably be expected to, and naturally would, frighten ordinary horses,” and the injury happened by reason of the plaintiffs’ horse taking fright at them. The points relied on by the defence are, first, that the bales of hay were upon the margin of the road; and, secondly, that the accident was occasioned by fright at them and not by collision with them. The case fairly presents the mere question, whether towns owe a statutory duty to travelers, for the breach of which the party suffering special damage may maintain an action, to remove from the margins of their highways objects unlawfully deposited there, which, by their frightful appearance, make it unsafe to travel the road with ordinary horses ?

I. Does the fact that the hay lay upon the margin instead of the path of the highway alter the rule of liability ?

If a town may be liable for a failure to remove an object unlawfully deposited upon the traveled track, for the reason that it obstructs travel by its frightful appearance, and thus renders the road unsafe, they must be equally liable when the object lies upon the margin, and naturally produces — as the jury under the charge have found it did in this case — precisely the same result. The result produced is, that the wrought path cannot be safely used by travelers. The cause which produces the result is an unlawful deposit of private property within the lines of the highway under the control of the town. If towns are bound to regulate their conduct with any reference to security from fright, less cannot be required of them than the removal of such obstructions as were complained of in this case, from any part of the highway, when their effect is to make the whole of it unsafe. This, of course, is said with the qualification that the duty does not attach until the town know of the obstruction, or ought to know of it. Nor would it attach while the property is lying upon the highway a reasonable time in loading or unloading, or for the ordinary purposes of transportation. It is true that towns are not bound, where it is unnecessary, to work the whole width of the highway, and if a traveler voluntarily leaves the path to travel upon the margin, he does so at his own risk: Rice v. Montpelier, 19 Vt., 470. But towns have a right to control the whole width of the road, and they have a corresponding duty. It is not necessarily a good defense to a claim for damages that they were incurred by reason of an obstruction upon the margin. On the contrary, it is well settled that it is the duty of towns to forbid and prevent the use of their highway margins as places of deposit for private property, whether it be lumber, shingles, logs, or other matter that may interfere with travel; and if they do negligently suffer the margins of their roads to become and remain unsafe by being thus encumbered, the party who, without fault on his part, meets with an accident by driving against them, may recover of the town. Among the numerous cases recognizing this doctrine are Cassedy v. Stockbridge, 21 Vt., 391; Snow v. Adams, 1 Cush., 443.

Nor does it alter the case that the party injured may sustain an action against the person who placed the nuisance upon the highway. It is the right of the party to proceed against the’ town if they are in fault, and the town may, if held to damages, look to the individual who obstructed the highway. See Newbury v. Pass. R. R. Co., 25 Vt., 377, and Willard v. Newbury, 22., Vt., 458. Assuming, then, that towns by such a neglect may become, as has always been held, liable to travelers who from some unforeseen cause, not their own fault, diverge from- the traveled track and meet with damage by collision with the obstruction, it follows that towns would still more clearly be liable when such objects occasion damage to the traveler- who does not diverge firom the accustomed path, but uses the road in the ordinary manner, provided towns may be liable at all for an injury occasioned by fright. When the margin of the highway is encumbered by an obstruction, and tbe obstruction is frightful in its appearance, only the exceptional individual who leaves the path incurs the danger of accident by collision, while everybody who travels any part of the road confronts the danger of accident by fright. It is very manifest that the error of the county court, if any, does not lie in the fact that the hay was upon the margin instead of the traveled path. The question must simplify itself to an inquiry whether a town may be liable for such accidents by fright as are the natural consequence of the obstruction they suffer to remain on the road.

II. In examining this second question — whether towns are bound to remove obstructions deposited upon their roads when their natural operation is to occasion accidents by fright in using ordinary horses — we must, as in all questions upon a statutory liability, have recourse to the statute and gather its meaning, as we can, from its language, its reason, and purpose; from the light shed upon it by the other statutory provisions relating to the same general subject, and by the judicial interpretation it has received. The statute in terms requires towns to keep their highways in. good and sufficient repair,” and makes them liable for special damages sustained by reason of their “ insufficiency or want of repair.” This language is quite broad enough to cover a case where a road cannot safely be travelled with ordinary horses. A statute, however, should not always be interpreted literally. It is often and properly said that this statute is not intended to impose an absolute liability upon towns for every insufficiency. They are only required to do what is practicable to be done to provide and preserve a condition of reasonable safety in their roads with reference to the amount and kind of travel they accommodate : Prindle v. Fletcher, 39 Vt., 255. But, it can hardly be said that a road in which obstructions are suffered to be placed and remain, which by their appearance are calculated to frighten ordinary horses, is in a condition of reasonable safety for travel of any ordinary kind or amount. Nor is it impracticable to prevent the continuance of such an obstruction. It is well understood that the duty of the town is not limited to the furnishing of a proper width and smoothness of path. The cases are numerous where towns have been held liable for not erecting proper muni-ments or barriers to protect travelers from accidentally going out of the road. Glidden v. Reading, 38 Vt., 52. So, too, in a late case, a town was held liable in Massachusetts for damages from the falling of an unsafe awning which was so built as to extend over the road and endanger the travel which passed under it: Day v. Milford, 5 Allen, 98. The purpose of the statute is to secure to the public safe highways. That purpose may be as effectually defeated by an obstruction which impedes travel by its frightful appearance as by one which, if it is hit, will be an obstacle to the secure passage of the wheels of a carriage. The land taken for the highway is taken for the public use as a highway. The statute has armed the towns with full authority to interfere with the appropriation of it to any private use inconsistent with an unembarrassed enjoyment of the public easement. It provides that if any person “ shall erect any encroachment, or make any obstruction, or put any nuisance upon any highway,” the selectmen may command or cause its removal. It also provides that no person shall “ wilfully fell any trees, lay any timber, or place any obstruction or other nuisance so as to obstruct, hinder, or impede the passing in such highway,” without being liable to a fine, and also to the payment to the town, or to any individual, of any damages sustained by either : Gen. Sts., pp. 204, 205, 206, § 66, § 69, § 71. These statutes, which are a part of the General Highway Law, shed some light upon the question of the extent of responsibility intended to be imposed upon towns with relation to their roads. It is beyond doubt that the placing of an obstruction upon a public way, which, by its frightful appearance or otherwise, would “ hinder or impede passing,” might subject the party who made the obstruction to fine and damages, and, if continued, might subject the town to indictment or to damages if the cause of an accident by collision. It is not easy to see the ground upon which the town should be entirely exempted from liability for the other and natural consequence of the obstruction — an accident by fright. In Kelsey v. Glover, 15 Vt., 708, the town was held liable for an obstruction because it was naturally calculated to, and actually did, add to the dangerous consequences of the accident from fright. Would the town hare escaped liability if the obstruction by its natural operation had caused the fright instead of merely adding to its evil results ? In many of the cases towns are held liable, although some accident, not the fault of the plaintiff or the defendant, contributes to the accident complained of Hunt v. Pownal, 9 Vt., 411. A town may reasonably be held to a higher responsibility, after notice, -with reference to the removal of obstructions made by private property unlawfully deposited upon the road — a duty easily performed and under the statute at the expense of the party who caused the obstruction — than with reference to the removal of equally dangerous obstructions which either exist naturally in the soil or are cast upon the margin in the process of working the road, which to a reasonable extent is a legitimate use of the margin. The traveler has reason to expect that the highway will have the ordinary and reasonable encumbrances which arise from the nature of the soil and country, and its being worked and repaired in a proper manner ; but he has no reason to apprehend that the town have suffered these dangers to be increased by allowing the land taken for public use to become unlawfully appropriated to private uses as a place of deposit for property which will in any manner obstruct or impede travel, whether by frightening his horse or clogging his wheels.

The recent decisions of the courts of Massachusetts, for the learning and ability of which we have great respect, tend to a different result from the one reached by us : Keith v. Easton, 2 Allen, 552 ; Kingsbury v. Dedham, 18 Id., 186 ; Cook v. Charlestown, Id., 190, 191, n. These cases are strongly relied on by the defense, and we have on account of their authority given the case before us a more extended examination than we otherwise should. But it is to be noticed, that at least two of these cases present such a state of facts as not necessarily to fall within the operation of the rules which we think should govern this case. The daguerrean saloon, which stood upon a carriage by the roadside, in the case of Keith v. Kaston, was, manifestly, not an object “ which might reasonably be expected to frighten ordinary horsesand the fluttering of loose canvass upon its roof was not the natural operation to be expected from the object. The pile of gravel fifteen inches high, complained of in Kingsbury v. Dedham, was that day lawfully and properly placed upon the road, to be spread over its surface in the ordinary course of repairs. It may be questioned how far the reasoning of the court, and it is upon this that the defendants here rely, would in Massachusetts be an authority in a case presenting different elements of fact. It is doubtful whether the injuries, for which towns may be held, can be satisfactorily classified and defined. Each case should stand upon its own facts. The note of the third case, Cook v. Charlestown, does not state whether the defendants had notice of the obstruction, and the opinion of the court is not reported. It is not, therefore, certain, from the report, that the court there held that, if the dead horse had been negligently suffered by the defendants, after notice, to lie in the street, the defendants would be exempted from liability for an accident which naturally resulted from the obstruction, simply because it was occasioned by fright instead of collision. If, however, such was the decision, the case is as strongly in point for the defendants as any case can be. Such an object as a dead horse in a street would almost inevitably occasion accidents by fright, and would far more endanger and obstruct travel, by its tendency to frighten horses, than by its likelihood to disturb the passage of wheels by collision. In Lund v. Tyngsborough, 11 Cush., 563, though a new trial was granted, it was held that the plaintiff might recover without proving actual contact with the defect, and although the fright of the horse contributed to the accident; but the recent decision of Horton v. Taunton, 97 Mass., 266, seems to have qualified this to some extent, for, if a town is not bound to guard against fright, they should not be against its consequences. It may be possible that the courts of Massachusetts have become more inclined to give the defendants in these cases the benefit of any doubt upon the meaning of the statute, from the fact that for a long time the action under their statute was substantially penal in its nature — the party injured recovering, if the town had notice of the defect, double damages. Mass. Stat. of 1781, ch. 81, § 7; Rev. Stat. Mass., 1836, ch. 25, § 22. By their statute of 1850, ch. 5, the recovery became limited to actual damages. The liability of towns for injuries by fright, occasioned by obstructions upon the highway margin, seems in New Hampshire to have been rather assumed as a matter of course, as an unquestionable proposition, than to have been decided -as a debatable question of law: Winship v. Enfield, 42 N. H., 199, 200, 216 ; Chamberlain v. Enfield, 43 Id., 358, 360 ; Littleton v. Richardson, 32 Id., 59. In all these cases, the injury occurred by fright at lumber placed upon the road, or its margin. In all of them, the Nisi Prius Court held that towns might be liable for damages incurred in that manner. In two of them a. new trial was granted for other errors, but in all of them satisfaction was expressed with the ruling below in this respect, though it does not seem to have been questioned in argument. The case of Dimock v. The Town of Suffield, 30 Conn., 129, was an action for an injury received by the plaintiff’s horse taking fright at some white plastering on the margin of the road, piled up, as the case finds, nearly to the height of the road-bed, but so as to be “ in no manner an obstruction to the public travel, except so far as it might frighten horses.” The point was distinctly made by the defendants, that the town could not be held liable for a defect of that nature. The court, in their opinion, delivered by Hinman, C. J., say, that whether any duty devolved upon the town with reference to the pile of plastering, “ depends upon whether it was in its general operation calculated to frighten horses of ordinary gentleness.” He also adds: “ There can be no doubt that a road may be rendered unsafe by objects upon it calculated to frighten animals ;” but “ whether a slight discoloration by the side of the road, such as was caused in this case by the plastering that lay there, was in fact an object calculated to frighten horses which are usually gentle, and therefore fit to be driven, is an entirely different question.” It- appeared in that case that the plaintiff’s horse was shy and timid, and a decision against the plaintiff was advised, upon the ground that there was “ heedlessness amounting to negligence on the plaintiff’s part, which was the cause of the injury, and that with the exercise of reasonable care he would have passed the object.” It is also said by Carpenter, J., in Newison v. New Haven, 7 Am. Law Reg., 783, that “ any object upon or near the traveled path, which in its nature is calculated to frighten horses of ordinary gentleness, being likely to obstruct tbe use of tbe way, may constitute a defect in tbe way itself.” The statutes as well as tbe decisions of Connecticut and New Hampshire, relating to tbe responsibility of towns for injuries upon tbe highways, more closely resemble ours than do those of Maine or Massachusetts. We think, that not only tbe language and purpose of our statutes, and tbe reason and spirit of our decisions, but also a proper regard to public policy, require us to bold that the defendant town is liable for the natural consequence to tbe plaintiffs of a negligent failure to remove the obstruction unlawfully deposited in tbe highway, which “ presented such an appearance, that it might reasonably be expected to, and naturally would, frighten ordinary horses'.” Tbe expression of tbe court below, that towns are bound to remove from their roads all objects calculated to frighten ordinary horses, would be open to criticism if it stood alone. It was, however, necessarily limited and applied to tbe bales of hay complained of. No other obstruction was in proof, and tbe remark could not have misled the jury. The result is, the judgment of the county court is affirmed.

Wilson, J., and Pbout, J.,

concurred. Pierpoint, C. J., having presided in the court below, and Pece, J., being a tax-payer in tbe defendant town, did not sit; but after judgment they expressed their concurrence with the views stated in tbe opinion. Kellogg, J., who was upon the bench, and heard tbe case when first argued, entertained tbe same views.

Barrett, J., dissented.  