14

progress of repairs by positive acts of negligence on his part,18 or by acts creating a nuisance.19

[§ 442] 4. Persons Causing Defect.20 A person causing a defect or obstruction in a highway,21 although outside the traveled way,22 is liable for injury resulting therefrom; and the fact that the highway was not legally established,23 or that the municipality is also liable,24 or that some other person is under a legal liability to remove the obstruc

question was not at liberty to refuse the appoint-
ment, or that the duty in respect to repairs is quasi
judicial and discretionary rather than ministerial,15
and is a duty owed to the public generally rather
than to individuals.16 In any event an officer is not
liable if he is under no obligation to make repairs.17
In some jurisdictions, even where the rule of non-
liability for failure to repair obtains, it is held that
the officer is liable for injuries occurring during the
v. Knapp, 14 Oh. St. 64, 82 AmD Ind. Southern Indiana R. Co. v. L. 279.
468; Thornton v. Springer, 5 Tex. Norman, 165 Ind. 126, 74 NE 896;
587; Young v. Davis, 2 H. & C. 197, Evansville, etc., R. Co. v. Crist, 116
159 Reprint 82.
Ind. 446, 19 NE 310, 9 AmSR 865,
2 LRA 450; Wood v. Mears, 12 Ind.
515, 74 AmD 222; Pittsburgh, etc., R.
Co. v. Iddings, 28 Ind. A. 504, 62
NE 112; Noblesville Gas, etc., Co. v.
Teter, 1 Ind. A. 322, 27 NE 635.

14. Il-Nagle v. Wakey, 161 Ill. 357, 43 NE 1079 [aff 59 III. A. 198]. Ind.-Lynn v. Adams, 2 Ind. 143. Oh-Dunlap v. Knapp, 14 Oh. St. 64, 82 Am D 468.

S. C.-McKenzie v. Chovin, 26 S. C. L. 222.

Vt.-Daniels v. Hathaway, 65 Vt. 247, 26 A 970, 21 LRA 377.

Iowa.-Elzig v. Bales, 135 Iowa 208. 112 NW 540; Overhouser V. American Cereal Co., 118 Iowa 417, 92 NW 74.

15. Nagle v. Wakey, 161 Ill. 387, Kan.-Thompson v. Union Tract. 43 NE 1079; Templeton v. Beard, Co., 103 Kan. 104, 172 P 990. 159 N. C. 63, 74 SE 735; Daniels Ky. Central Consumers Co. v. v. Hathaway, 65 Vt. 247, 26 A 970, Booher, 107 SW 198, 32 KyL 794. 21 LRA 377. But see Harris v. Car- La.-Atkins v. Bush, 141 La. 180, son, 40 Ill. A. 147; Skinner v. Mor-74 S 897, LRA1917E 809; Williams gan, 21 Ill. A. 209 (both holding that v. Louisiana Electric Light, etc., Co., the work of repairing a highway is 43 La. Ann. 295, 8 S 938. a ministerial act for the negligent performance of which the officer is liable). And see cases supra note

12.

16. Youmans v. Thornton, 31 Ida. 10. 168 P 1141; Worden v. Witt, 4 Ida. 404, 39 P 1114, 95 AmSR 70; McConnell v. Dewey, 5 Nebr. 385; Robertson v. Moore, (N. H.) 109 A 495; Templeton v. Beard, 159 N. C. 63, 74 SE 735.

17.

[a] Illustrations.-(1) A company maintaining an oil pipe on the surface of the highway, through which inflammable oil is flowing, is liable in damages to one who, without negligence, breaks the pipe by driving a threshing outfit over it, and sustains injury from escaping oil. Thompson v. Union Tract. Co., 103. Kan. 104, 172 P 990. (2) A railway company, permitting a wire fence between its right of way and the public highway to remain in a condition dangerous to those lawfully using the highway, is liable for all resulting damages. Brown V. Wabash R. Co., 90 Mo. A. 20. (3) One may be liable for tethering a cow by a chain fastened to a stake, over which chain a horse stumbled. Gulliver v. Blauvelt, 14 App. Div. 523, 43 NYS 935. (4) While contractors for the repairs of a highway, or their

Me.-Dickey v. Maine Tel. Co., 43 Me. 492; French v. Camp, 18 Me. 433, 36 AmD 728. Mass.-Stoughton v. Porter, 13 Al-employees, during the intervals belen 191; Taylor v. Boston Water Power Co., 12 Gray 415.

Mich.-Jewell v. Rogers Tp., 208
Mich. 318, 175 NW 151.

Mo.-Brown v. Wabash R. Co., 90 Mo. A. 20; Golden v. Chicago, etc., R. Co., 84 Mo. A. 59; Matthews v. Theulen v. Viola Tp., 139 Iowa Missouri Pac. R. Co., 26 Mo. A. 75. 61. 117 NW 26; Baltimore County N. H.-Harriman v. Moore, 74 N. H. v. Wilson, 97 Md. 207, 54 A 71, 56277, 67 A 225; Paine v. Grand Trunk A 596 (the act of 1900, taking away R. Co., 58 N. H. 611, 63 N. H. 623, the authority of the county com3 A 634. missioners to make repairs, removes the liability of such commissioners for failure to repair); Nobles V. Langly. 66 N. C. 287.

N. J. Brady v. Public Serv. R. Co., 80 N. J. L. 471, 79 A 287; Durant v. Palmer, 29 N. J. L. 544.

tween labor, have the right to leave alongside the highway the carts in daily use, they are nevertheless bound to use the care of an ordinarily prudent man, having regard to the circumstances, in doing it. Klingensmith V. Keeling, 21 Pa. Super. 188; Nicholas v. Keeling, 21 Pa. Super. 181.

[b] Quarry company owed duty to barricade improved road long in use where road had been closed to allow quarrying of stone across it. Jewell v. Rogers Tp., 208 Mich. 318, 175 NW 151.

of law. Central Consumers Co. Booher, 107 SW 198, 32 KyL 794.

v.

N. Y.-Tinker v. New York, etc., [c] Leaving open and unguarded 18. Tholkes v. Decock, 125 Minn. R. Co., 157 N. Y. 312, 51 NE 1031; at night a cellar door extending over 507, 147 NW 648. 52 LRANS 142 Davenport v. Ruckman, 37 N. Y. 568, more than two thirds the width of a [dist Bolland v. Gihlstorf, 134 Minn. 5 Transcr. A. 254; Congreve v. Mor-sidewalk is negligence as a matter 41, 158 NW 725 (where the officer gan, 18 N. Y. 84, 72 AmD 495; Place was held not liable for failure to v. Delaware, etc., R. Co.. 157 App. repair)]; Downes v. Hopkinton, 67 Div. 24, 141 NYS 970; Sweet v. PerN. H. 456. 40 A 433. See Brown v. kins, 115 App. Div. 784. 101 NYS West, 75 N. H. 463. 76 A 169 (town 163; Mulholland V. McKeever, 64 selectmen were liable for negligent App. Div. 617, 72 NYS 138; Lawton acts causing an injury, in which they v. Olmstead, 40 App. Div. 544, 58 participated. either by direct per- NYS 36; Gulliver v. Blauvelt, 14 Arp. sonal interference, or by giving di-Div. 523, 43 NYS 935; Macauley v. rections, which would make the act their own, although done by another).

Schneider, 9 App. Div. 279, 41 NYS
519; Dunsbach v. Hollister, 49 Hun
352, 2 NYS 94 [aff 132 N. Y. 602
mem, 30 NE 1152 mem]; Osborn v.
Union Ferry Co.. 53 Barb. 629; Wen-
dell v. Troy, 39 Barb. 329 [aff 4 Abb.
Dec. 563, 4 Keyes 261]; McDermott
V. Conley, 11 NYS 403; Haden V.

19. Chandler v. Davidson County,
142 Tenn. 265, 218 SW 222.
20. Cross references:
Abutting owners see infra § 443.
Liability of persons causing defect
in city street see Municipal Cor-Clarke,
porations [28 Cyc 1434 et seq].
Obstructions of highway by:
Electric companies see Electricity low v. Humiston, 6 Cow. 189.
§ 39.

[d] A cow permitted to run at large in a public highway in the nighttime may be reasonably expected to lie down in the road and become a danger and menace to travel. Donaghue v. Fraikin, 200 Ill.

A. 339.

22. Dickey v. Maine Tel. Co., 46 Me. 483; Opdycke v. Public Serv. R. Co., 78 N. J. L. 576, 76 A 1032, 29 LRANS 71.

[a] The rule that only the traveled part of the way need be safe applies only as between the traveler and the municipality, and private 10 NYS 291; Dygert V. persons who place obstructions upon Schenck, 23 Wend. 446, 35 AmD 575; the untraveled portion of the highLansing v. Smith, 8 Cow. 146; Har-way are liable for injuries received by a traveler going outside the travN. D.-Solberg V. Schlosser, 20 eled track. Dickey v. Maine Tel. Co., N. D. 307, 127 NW 91, 30 LRANS 46 Me. 483. Or.-Milarkey v. Foster, 6 Or. 378, Pa. Tobin v. New Castle Tp., 248 21. Ala. -Rodgers v. Harper. 170 Pa. 608, 94 A 250; Grier v. Sampson, Ala. 647, 54 S 199; Wells v. Galla-27 Pa. 183; Nicholas v. Keeling, 21 gher. 144 Ala. 363, 39 S 747, 113 Pa. Super. 181. AmSR 50, 3 LRANS 759.

Gas companies see Gas § 54.

Street railroads see Street Rail-1111. roads [36 Cyc 1497].

Use of highway frightening horses 25 AmR 531. see supra § 455.

Ark. Mullett v. Clarendon Electric Light, etc., Co., 174 SW 560. Cal-McKune v. Santa Clara Valley Mill, etc., Co., 110 Cal. 480, 42 P 980; Pastene v. Adams, 49 Cal. 87.

Del. Mills v. Wilmington City R. Co.. 15 Del. 269, 40 A 1114.

Ga.-Bagwell v. Georgia R.. etc., Co., 24 Ga. A. 15, 99 SE 712; Folsom v. Lewis, 85 Ga. 146. 11 SE 606.

Ida. Horn v. Boise City Canal Co., 7 Ida. 640. 65 P 145. Ill-Clark v. Lake, 2 Ill. 229; Galt v. Woliver, 103 Ill. A. 71.

R. I-Foley v. Ray, 27 R. I. 127, 61 A 50.

Liability of municipality for defects outside of traveled way see infra 445.

23. Denny v. Virginia Bridge, etc., Co., 150 Mo. A. 72, 129 SW 714; Pewonka v. Stewart, 13 N. D. 117, 99 NW 1080; Pecos, etc., R. Co. v. Bowman, 34 Tex. Civ. A. 98, 78 Sw

22.

Tex.-San Antonio, etc., R. Co. v. [a] Although a road was not Wood, 41 Tex. Civ. A. 226, 92 SW technically a public highway yet it 259; Pecos, etc., R. Co. v. Bowman, having been such in the sense that 34 Tex. Civ. A. 98, 78 SW 22; Hous- the public constantly used it and ton, etc.. R. Co. v. Dunn, 17 Tex. was licensed to use it. defendant Civ. A. 687. 42 SW 250, 53 SW 607. who knew, when he threw iron into W. Va.-Williams v. Main Island it and left it there over night, that Creek Coal Co., 83 W. Va. 464, 98 SE it was a road in use by travelers, 511. was liable for injury therefrom to a V. Bond, 36 horse driven along it. Denny V. Virginia Bridge, etc., Co., 150 Mo. A. N. S.-Wells v. Western Union Tel. 72, 129 SW 714. Co., 40 N. S. 81. 24. Colo.-Diamond Rubber Co. v. Sask. Smith v. Berwick, 6 Sask. Harryman, 41 Colo. 415, 92 P 922.

Wis. - Hundhausen
Wis. 29.

27

tion,2 25 is no defense. Thus one who places in the highway objects calculated to frighten horses is liable for injuries resulting from a horse taking fright,26 if such use of the highway involves an unreasonable interference with the rights of the public, although he owns the fee in the highway.28 Likewise an independent contractor for the erection of a building is liable for defects in or obstructions upon the highway caused by him,29 as may also be the owner.30 In some jurisdictions it is held that the rule, exempting counties 31 and officers charged with the duty of looking after roads 32 from liability for injuries from defects, extends to independent highway contractors 33 on the theory that if the contractor was held liable the real burden would fall upon the county because of the excessive price it would be required to pay for the work.34 So it has been held that while a contractor engaged

Pa.-Piollet V.

in improving the highway is bound to exercise rea-
sonable care in performing the work,35 he is not
liable for failure to erect a railing at a culvert
where he has widened the road in accordance with
his contract.36 On the other hand it has been held
that, where a contractor under contract to repair
a highway fails to do so,37 or fails to guard un-
safe places near the work pursuant to his contract
with the highway officers,38 he is liable for injuries
caused thereby. The liability of an individual who
without authority of law creates a dangerous condi-
tion in the highway, to a person injured thereby,
is generally based on the theory that the defect or
obstruction constitutes a nuisance,3
39 and accord-
ingly it has been decided that the liability of such
person is not affected by the question whether he
was actually negligent.40 So one who makes an ex-
cavation in the highway and places a bridge there-

31. 32.

Simmers, 106 Pa. | Wis. 29.
95, 51 AmR 496; Pittsburgh South-
ern R. Co. v. Taylor, 104 Pa. 306,
49 AmR 580; Mallory v. Griffey, 85

Iowa.-Calder v. Smalley, 66 Iowa
219, 23 NW 638, 55 AmR 270.
Me.-Tobin V. Portland, etc., R.
Co., 59 Me. 183, 8 AmR 415.
Md. Rome V. Baltimore, etc., R. Pa. 275.
Co., 82 Md. 493, 33 A 761.

Mass.-Lowell v. Boston, etc., R.
Corp., 23 Pick. 24, 34 AmD 33.

Minn.-Landru v. Lund, 38 Minn. 538, 38 NW 699.

N. H.-Elliot v. Concord, 27 N. H. 204.

N. Y.-Davenport v. Ruckman, 37 N. Y. 568, 5 Transcr. A. 254.

Pa-Gates v. Pennsylvania R. Co., 150 Pa. 50, 24 A 638, 16 LRA 554, 154 Pa. 566, 26 A 598; Brookville Borough v. Arthurs, 130 Pa. 501, 18 A 1076; Philadelphia V. Weller, 4 Brewst. 24.

Vt.-Willard v. Newbury, 22 Vt.

458.

25. Brady v. Public Serv. R. Co., | 80 N. J. L. 471, 79 A 287.

Tex.-Pecos, etc., R. Co. v. Bow-
man, 34 Tex. Civ. A. 98, 78 SW 22.
Eng.-Harris v. Mobbs, 3 Ex. D.
268.

Ont. Rice v. Whitby, 28 Ont. 598.
Sask. Smith v. Berwick, 6 Sask.
L. 279.

And see supra § 455.

[a] Lumber pile.-Golden v. Chicago, etc., R. Co., 84 Mo. A. 59; Valley v. Concord, etc., R. Co., 68 N. H. 546, 38 A 383.

[b] Pile of refuse.-Island Coal Co. v. Clemmitt, 19 Ind. A. 21, 49 NE 38.

[c] Steam roller--Mulholland V. McKeever, 64 App. Div. 617, 72 NYS 138.

[d] Hay cap on side of road. [a] Thus defendant cannot re- Lynn v. Hooper, 93 Me. 46, 44 A lieve himself from liability by show-127, 47 LRA 752.

son

ing that he had hired another per- [e] Stock car.-Pecos, etc., R. Co.
to remove the obstruction and v. Bowman, 34 Tex. Civ. A. 98, 78
that the latter had failed to do so. SW 22.
Elzig v. Bales, 135 Iowa 208, 112
NW 540 (holding further that it was
immaterial whether the person SO
hired was an independent contractor
or not).

26. Ala.-Rodgers v. Harper, 170 Ala. 647, 54 S 199.

Conn.-Clinton v. Howard, 42 Conn.

294.

Del.-Kyne v. Wilmington, etc., R. Co., 13 Del. 185, 14 A 922.

[f] The placing of a grindstone mounted on an iron frame about four feet high on the traveled portion of a public road in a position to come suddenly to view in coming over an embankment is calculated to frighten an ordinarily gentle horse, and is evidence of negligence. McGolderick v. Wabash R. Co., (Mo. A.) 200 SW 74 [certiorari quashed sub nom. State v. Ellison, 204 SW 396]. Liability of public authorities see infra § 449.

See supra § 440.
See supra § 441.

33. Schneider v. Cahill, (Ky.) 127 SW 143, 27 LRANS 1009; Moss v. Rowlett, 112 Ky. 121, 65 SW 153, 358, 23 KyL 1411.

[a] Illustration.-A county contractor who placed stone upon a highway with no lights or signals is not liable to one who drove into it in the dark, and was injured. Ockerman v. Woodward, 165 Ky. 752, 178 SW 1100, LRA1916A 1005.

34. Ockerman v. Woodward, 165 Ky. 752, 178 SW 1109, LRA1916A 1005; Schneider v. Cahill, (Ky.) 127 SW 143, 27 LRANS 1009.

35. Burroughs V. Lane Constr. Corp., 77 N. H. 124, 88 A 1001. 36. Burroughs V. Lane Constr. Corp., 77 N. H. 124, 88 A 1001.

37. Theulen V. Viola Tp., 139 Iowa 61, 117 NW 26; Wade v. Gray. 104 Miss. 151, 61 S 168, 43 LRANS 1046.

Liability of municipality for acts of independent contractor see supra § 440.

38. Alameda County V. Tieslau, (Cal. A.) 186 P 398; Metcalf v. Mellen, (Utah) 192 P 676 [dist Romney v. Lynch, (Utah) 199 P 974 (where the contract was for construction of a state road and the accident hap pened on a road under the control of the county commissioners with which defendant had nothing to do under his contract, but had merely given directions to the public to take such road as a detour while the state road was in process of construction)]. See Zegeer v. Barrett Mfg. Co., 226 Mass. 146, 115 NE 291 (failure of contractor to place proper warning sign at point where he had sprayed road with slippery tarvia pursuant to his contract with [a] Objects properly in the high-highway commission). way. (1) It is not negligence per se to permit to stand in the highway 44 A 127, 47 LRA 752; Lake v. Mil-over Sunday a steam roller used in liken, 62 Me. 240, 16 AmR 456; Jewett v. Gage, 55 Me. 538, 92 AmD

Ill-Galt v. Woliver, 103 Ill. A. 71; Baltimore, etc., R. Co. v. Faith, 71 Ill. A. 59 [aff 175 Ill. 58, 51 NE 807].

Ind.-Pittsburgh, etc., R. Co. v. Kitley, 118 Ind. 152, 20 NE 727; Keeley Brewing Co. V. Parnin, 13 Ind. A. 588, 41 NE 471.

Iowa. Hanson v. Chicago. etc., R. Co.. 94 Iowa 409, 62 NW 788.

Me.-Lynn v. Hooper, 93 Me. 46,

615.

Mass.-Bemis v. Temple, 162 Mass.
342, 38 NE 970. 26 LRA 254; Judd
V. Fargo, 107 Mass. 264; Jones v.
Housatonic R. Co., 107 Mass. 261.
Minn. Nye v. Dibley, 88
Minn.
465, 93 NW 524.
Mo.-Golden v. Chicago, etc., R.
Co., 84 Mo. A. 59.

N. H.-Valley v. Concord. etc., R.
Co., 68 N. H. 546, 38 A 383.

27.
Tinker v. New York, etc., R.
Co., 157 N. Y. 312. 51 NE 1031;
Keeley v. Shanley, 140 Pa. 213, 21 A
305; Kumba v. Gilham, 103 Wis. 312,
79 NW 325; Wilkins v. Day, 12 Q.
B. D. 110.

the construction or repair of the
highway. Kelley v. Shanley, 140 Pa.
213, 21 A 305. (2) It is not negli-
gence to leave a top buggy, with the
top half down, and right side up.
without the front wheels, from nine
to twelve feet from the middle of a
highway running through the woods,
the buggy being of a type in common
use in the locality, and just such as
horses are accustomed frequently to
meet. Kumba v. Gilham, 103 Wis.
312, 79 NW 325..

29.

N. Y.-Tinker v. New York, etc., 28. Tinker v. New York, etc.. R. R. Co., 157 N. Y. 312, 51 NE 1031 Co.. 157 N. Y. 312, 51 NE 1031 [aff [aff 92 Hun 269, 36 NYS 672, Eg- 92 Hun 269, 36 NYS 672]. gleston v. Columbia Turnp. Road, 82 N. Y. 278]; Mulholland v. McKeever. 64 App. Div. 617, 72 NYS 138; Stewart v. Porter Mfg. Co., 13 NYSt 220.

Jones v. Chantry. 4 Thomps. & C. (N. Y.) 63; Hundhausen V. Bond, 36 Wis. 29; Knight v. Fox, 5 Exch. 721, 155 Reprint 316.

30. Ohio Southern R. Co. V. Morey, 47 Oh. St. 207, 24 NE 269, 7 LRA 701; Hundhausen v. Bond, 36

[a] Illustration.-The failure of a road contractor to place lights, as required by his contract, Oli & continuous pile of rock along the side of the highway partly opened for traffic, the work having been stopped on order of the state engineer, is negligence. Alameda County v. Tieslau, (Cal. A.) 186 P 398.

39. Clinton v. Howard, 42 Conn. 294; Linsley v. Bushnell, 15 Conn. 225, 38 AmD 79; Evansville, etc., R. Co. v. Crist. 116 Ind. 446, 19 NE 310, 9 AmSR 865, 2 LRA 450; Stoughton v. Porter, 13 Allen (Mass.) 191; Vosburgh v. Moak. 1 Cush. (Mass.) 453, 48 AmD 613; Hadley v. Taylor, L. R. 1 C. P. 53.

40. Congreve v. Smith. 18 N. Y. 79, 82; Houghtaling v. Shelley, 51 Hun 598, 3 NYS 904; Dygert V. Schenck, 23 Wend. (N. Y.) 446, 35 AmD 575.

"The general doctrine is that the public are entitled to the street or highway in the condition in which

[a] Illustrations.—(1) Where an incorporated street and suburban railroad company, authorized to contract for carriage of freight, contracts to deliver a carload of cin- N. Y.-Davenport v. Ruckman, 37 ders on a public road outside the N. Y. 568, 5 Transcr. A. 254 [aff 23 municipal limits, and delivers to the N. Y. Super. 20, 16 AbbPr 341]; consignee by temporarily depositing Houghtaling v. Shelley, 51 Hun 598, the cinders in the road, under writ-3 NYS 904. 41. Woburn V. Henshaw. 101 ten permission of the county com- Oh-Nagle v. Brown, 37 Oh. St. Mass. 193, 3 AmR 333; Perley v. missioners, and the consignee ac- 7 [aff 7 Oh. Dec. (Reprint) 316, 2 Chandler, 6 Mass. 454, 4 AmD 159; cepts them there, the carrier is not CincLBul 98]. Dygert v. Schenck, 23 Wend. (N. Y.) liable to a traveler for personal in- Pa.-Palmer v. Silverthorn, 32 Pa. 446. 35 Am D 575: Woodring v. jury from the obstruction. Bagwell 65. Forks Tp., 28 Pa. 355, 70 AmD 134; v. Georgia R., etc., Co., 24 Ga. A. Tex.-Abilene Oil Co. v. Briscoe, Houston, etc., R. Co. v. Dunn, 17 15, 99 SE 712. (2) A traction com-27 Tex. Civ. A. 157, 66 SW 315. Tex. Civ. A. 687, 42 SW 250, 53 SWpany, which pursuant to an order of Vt.-Brownell v. Troy, etc., R. Co.,

county officials removed from its5 Vt. 218.

track on a county road dirt and rock Wis. Busse V. Rogers, 120 Wis. and dumped the same on the road at 443, 98 NW 219. 64 LRA 183.

place designated by the county [a] Illustrations.-(1) An abutofficials, to be used for repair of an ting landowner, who allows his liintersecting avenue, is not liable for censee to maintain a nuisance, coninjuries to a traveler due to ob-sisting of a derrick with a guy struction caused by the materials, stretched across a highway so low which had then been received and as to be dangerous to travelers, is taken charge of by the county. Shepard v. Utah Light, etc., Co., (Utah) 184 P 542.

49. Lucas v. St. Louis, etc., R. Co., 174 Mo. 270, 73 SW 589, 61 LRA 452.

[a] No citizen is under any per-
sonal legal obligation to remove a
nuisance from a public highway, not-
withstanding he may know it is cal-
culated to do injury to a traveler on
the highway if it is allowed to re-
main there. Lucas v. St. Louis, etc.,
R. Co.. 174 Mo. 270. 73 SW 589,
61 LRA 452.

50. Lucas v. St. Louis, etc., R.
Co., 174 Mo. 270, 73 SW 589, 61 LRA
452.
Davis v. Williams, 4 Ind. A.
487, 31 NE 204.

52. Linsley v. Bushnell, 15 Conn. 225, 38 AmD 79; Lawton v. Olm-repair. 47. Keinauer v. Hackensack Wa- stead, 40 App. Div. 544, 58 NYS 36; 183. ter Co., 92 N. J. L. 8, 105 A 15.

Tel. Co. v. Burge, (Tex. Civ. A.) 192
SW 807.

53. Pittsburgh, etc.. R. Co., V.
Iddings, 28 Ind. A. 504. 62 NE 112;
Booth v. Orleans, 66 Misc. 339. 123
NYS 700 [aff 147 App. Div. 240, 131
NYS 1088]. And see generally In-
demnity [22 Cyc 96].

[a] Illustration.-Where a water company made an excavation in the highway under permission from authorities, the burden rested on it to restore the highway to normal condition and take care of it until that restoration by settling and filling, was permanent, and the fact that 54. Excavations and other dethe same duty might have rested fects on premises injuring travelers 39 N. on the authorities did not affect the on adjoining highway see Negligence company's primary liability to mo-[29 Cyc 466 et seql. torcycle rider. Reinauer v. Hacken- Liability of abutting owner for insack Water Co., 92 N. J. L. 8, 105 jury in city street see Municipal A 15. Corporations [28 Cyc 1345, 1354, 1435].

55. Il-Kaminiski v. Corn Products Refining Co., 184 Ill. A. 286.

traffic;68 and the fact that teams are driven safely over a highway does not conclusively show that it is reasonably safe for public travel.69 Under some statutes, however, it is no defense that the municipality used ordinary care, where, after notice of a defect, the road is not made reasonably safe.70 So where the statute requires towns to keep their highways safe their duty is not limited to the expenditure of a reasonable sum on the maintenance thereof. The duty to keep the highway in a reasonably safe condition means safe for general or ordinary travel 72 or use for any lawful and proper

[b] The duty of town superin-, 555. tendents, commissioners of highways, and pathmasters in breaking out snowbound roadways is to use "ordinary care," that is, the care that a reasonably prudent person would exercise in similar circumstances. Robinson v. Somers, 189 App. Div. 792, 179 NYS 107.

[c] Acts held not to constitute negligence.-Township supervisors are not negligent in permitting a side path to be constructed and used along a road, it being four feet wide, smooth, and for the most part on a level with the roadway, but at a certain point five or six feet above it. Siegler V. Mellinger, 203 Pa. 256, 52 A 175, 93 AmSR 767.

65. Mass.-Flagg V. Millbury, Cush. 243.

N. Y.-Lane v. Hancock, 142 N. Y. 510, 37 NE 473; Madigan v. Schaghticoke, 143 App. Div. 887, 128 NYS 800; Wade v. Worcester, 134 App. Div. 51, 118 NYS 657; Scofield v. Poughkeepsie, 122 App. Div. 868, 107 NYS 767; Kent v. Patterson, 80 Misc. 560, 141 NYS 932.

Or.-Buttle v. Douglas County, 87 Or. 105, 168 P 1180.

Pa.-Lamb V. Pike Tp., 215 Pa. 516, 64 A 671; Ackley v. Bradford Tp., 32 Pa. Super. 487; Curry v. Luzerne, 24 Pa. Super. 514.

Wash.-Wessels v. Stevens County, 188 P 490; Leber v. King County, 469 Wash. 134, 124 P 397, 42 LRANS 267; Archibald v. Lincoln County, 50 Wash. 55, 96 P 831.

Me.-Crocker V. Orono, 112 Me. 116, 90 A 978; Cunningham v. FrankV. Springfield fort, 104 Me. 208, 70 A 441; Moriarty Tp., 258 Pa. 496, 102 A 134; Siegler v. Lewiston, 98 Me. 482. 57 A 790; v. Mellinger, 203 Pa. 256, 52 A 175, Church v. Cherryfield. 33 Me. 460.93 AmSR 767. Mass.-Bond V. Billerica, 235 Wash.-Wessels v. Stevens CounMass. 119, 126 NE 281. ty, 110 Wash. 196, 188 P 490; Leber v. King County, 69 Wash. 134, 124 P 397. 42 LRANS 267; Dignan v. Spokane County, 43 Wash. 419, 86 P 649.

73

purpose, including use by automobiles and bi-
cycles.74 But a highway which is reasonably safe
for ordinary travel is not defective merely because
no special provision is made for its use by bicycles
and automobiles.75 So the municipality is only re-
quired to keep the highways in a reasonably safe
condition for the ordinary horse.76 In removing an
obstruction placed in the highway by an individual,
a town is bound to exercise a higher degree of care
than in removing equally dangerous objects which
are incident to the nature of the soil or to the
construction of the road, since a traveler has rea-
son to expect that the highway will have some nat-
ural obstructions.78 In determining whether a high-
way is in a reasonable state of repair, its loca-
tion and character and the extent of travel thereon
are to be considered.79 But a town is not, as a
matter of law, free from liability on account of
a loose plank in a sidewalk, merely because it con-
tains a population of only five or six hundred peo-
ple.so
It has also been held that, in determining
whether reasonable care has been taken by the
authorities to keep the highway reasonably safe, it
73. Gregory v. Adams, 14 Gray | 79_AmSR 320, 50
(Mass.) 242; Johnson v. Highland,
124 Wis. 597, 102 NW 1085.
[a] Illustration.—A town was
liable for an injury to an elephant
driven over the highway with due
care, only if, in the opinion of the
jury, it was proper to make such use
of the highway under the circum-
stances. Gregory v. Adams, 14 Gray
(Mass.) 242.

a

[b] Traction engines.-Under statute regulating the propelling of steam engines on highways, it is the duty of a town to construct and maintain its highways in a reasonably safe condition for travel by traction engines. Johnson v. Highland, 124 Wis. 597, 102 NW 1085.

74. Molway v. Chicago, 144 Ill. A. 509 [aff 239 Ill. 486, 88 NE 485, 23 LRANS 543, 16 AnnCas 424]; Hendry v. North Hampton, 72 N. H. 351, 56 A 922. 101 AmSR 681, 64 LRA 70; Millikin v. Richhill Tp., 67 Pa. Super. 326; Fox v. Clarke, 25 R. I. 515, 57 A 305, 65 LRA 234, 1 AnnCas 548.

[a] Thus defects which make a road insufficient for other vehicles give a bicyclist a right to recover. Hendry V. North Hampton, 72 N. H. 351, 56 A 922, 101 AmSR 681, 64 LRA 70.

is proper to consider the total extent of the highways within the jurisdiction,81 and the probable expense of doing the particular work under consideration as compared with the resources of the municipality to meet such expense.

82

Lack of means for repair. 83 The fact that a municipality is without means to make repairs exempts it from liability for failure to make them.84 But this rule has been held not to apply where the statute makes the duty to keep the roads in repair absolute.85 Nor will the existence of indebtedness sufficient to consume all the available funds excuse a failure to make a small repair of a pressing nature. 86 So the lack of funds at the time of the accident is no excuse if the defect existed for a long time to the knowledge of the highway commissioner, and he had sufficient funds within that time. There must be not only a lack of funds for the work, but also a lack of ability to procure them 88 or to have the work done in any way; and it has accordingly been held that such lack is no defense if it arose merely from failure to levy proper taxes,89 or if the abutting property owners LRA 127. For injuries on city streets see 76. Bitting V. Maxatawny Tp., Municipal Corporations [28 Cyc 177 Pa. 213, 35 A 715; Trexler V. Greenwich Tp., 168 Pa. 214, 31 A 1090; Russell v. Westmoreland County, 26 Pa. Super. 425.

87

[a] Balkiness is not a common trait in a horse, so that counties are bound to keep country roads in such condition that no accident may result therefrom, the county being only bound to provide a reasonably safe place of travel by the ordinary horse. Cage v. Franklin Tp., 11 Pa. Super.

533.

77. Morse v. Richmond, 41 Vt. 435, 98 AmD 600.

78. Morse V. Richmond, 41 Vt. 435, 98 AmD 600.

79. Davis V. Guilford, 55 Conn. 351, 11 A 350; Burr v. Plymouth, 48 Corn. 460; Sanders v. Palmer, 154 Mass. 475, 28 NE 778; Madigan v. Schaghticoke, 143 App. Div. 887, 128 NYS 800; Perry Tp. v. John, 79 Pa. 412; Branegan v. Verona, 170 Wis. 137, 174 NW 468.

[a] Almost innumerable circumstances, such as the topography of the locality, development of the community, standard of road construction therein attained, the amount and character of traffic, etc., [b] One driving an automobile is are to be taken into consideration a traveler" within the statute mak-in determining whether a given coning a town liable to one injured while traveling upon a highway because of defect rendering it unsuitable for travel. Richmond v. Bethlehem, (N. H.) 104 A 773.

Injuries to motor vehicles generally see Motor Vehicles [28 Cyc 41].

75. Bond v. Billerica, 235 Mass. 119, 126 NE 281; Doherty v. Ayer, 197 Mass. 241, 83 NE 677, 125 Am SR 355, 14 LRANS 816; Rust V. Essex, 182 Mass. 313, 65 NE 397: Winegardner v. Springfield Tp.. 258 Pa. 496, 102 A 134; Fox v. Clarke, 25 R. I. 515, 57 A 305, 65 LRA 234, 1 AnnCas 548.

dition renders a highway defective.
Branegan v. Verona. 170 Wis. 137,
174 NW 468.

1343].

Of highway officers see supra § 441.
84. Ill. Carney v. Marseilles, 136
Ill. 401, 26 NE 491, 29 AmSR 328.
Miss. Whitfield V. Meridian, 66
Miss. 570, 6 S 244, 14 AmSR 596, 4
LRA 834.

N. Y.-Monk v. New Utrecht, 104 N. Y. 552, 11 NE 268; Weed v. Ballston Spa, 76 N. Y. 329; Young v. Macomb, 11 App. Div. 480, 42 NYS 351; Lane v. Hancock, 67 Hun 623, 22 NYS 470 [rev on other grounds 142 N. Y. 510, 37 NE 473]; Eveleigh v. Hounsfield, 34 Hun 140.

Oh.-Guernsey County v. Black, 34 Oh. Cir. Ct. 164 [aff 88 Oh. St. 587 mem, 105 NE 767 mem].

Ont.-O'Connor v. Otonabee Tp., 35
U. C. Q. B. 73.

Burden of proof see infra § 481.
Pleading see infra § 474.

85. Winship v. Enfield, 42 N. H. 197; Burns v. Elba, 32 Wis. 605. See Baitimore, etc., Turnp. Road v. State, 63 Md. 573, 1 A 285 (absence of funds no défense to prosecution of turnpike company for nuisance).

86. Rhines v. Royalton, 15 NYS 944.

87. Whitlock v. Brighton, 2 App. Div. 21, 37 NYS 333 [aff 154 N. Y. 781 mem, 49 NE 1106 mem].

88. Mt. Vernon v. Brooks, 39 Ill. A. 426; Ivory v. Deerpark, 116 N. Y. 476, 22 NE 1080; Pomfrey

V.

NE 43; Quinn v. Sempronius, 33 App. Div. 70, 53 NYS 325; Whitlock v. Brighton, 2 App. Div. 21, 37 NYS 333 [aff 154 N. Y. 781 mem, 49 NE 1106 mem].

[b] "In a thickly settled com-Saratoga Springs, 104 N. Y. 459, 11 munity there is greater obligation upon the town, superintendent to keep the highways in repair for public travel than in an isolated part of the town where there is very little use of the highways." Stedman v. [a] Rule applied.-(1) Under a Osceola, 147 App. Div. 220, 132 NYS statute making towns liable only in 28. To same effect Glasier v. Heb-case the highway commissioners are ron, 131 N. Y. 447, 30 NE 239. liable, where the commissioner had 80. Graham v. Oxford, 105 Iowano funds in his hands, and the town 705. 75 NW 473. supervisor held funds applicable to such purpose, but had not paid them over to the commissioner although the latter had demanded them, the town was liable if the commissioner failed to perform his full duty in requesting the supervisor to pay to him such funds, or in taking measures to compel payment. Clapper v. Waterford, 131 N. Y. 382, 30 NE 240. (2) So it was no excuse for failure to repair that there were no funds in the treasury, if a tax levy had already been made against which warrants might be issued in anticipation of its collection. Mt. Vernon v. Brooks, 39 Ill. A. 426.

81. Weeks v. Needham, 156 Mass. 289, 31 NE 8; Sanders v. Palmer, [a] Rule applied. That a guard 154 Mass 475, 28 NE 778; Medina rail was not strong enough to pre- Tp. v. Perkins, 48 Mich. 67, 11 NW vent an automobile from running 810; Lane V. Hancock, 142 N. Y. over an embankment near the high-510, 37 NE 473; Perry Tp. v. John, way did not render the county 79 Pa. 412.

liable. Wasser V. Northampton 82. Sanders v. Palmer, 154 Mass.
County, 249 Pa. 25, 94 A 444, LRA 475, 28 NE 778: Hayes v. Cambridge.
1915F 973.
136 Mass. 402; Rooney v. Randolph,
128 Mass. 580; Perry Tp. v. John,
79 Pa. 412

[b] Bicycles and automobiles are
not "carriages" within a statute pro-
viding that highways shall be kept in [a] "Towns are not required to
repair so that they may be reason- incur disproportionate and unrea-
ably safe and convenient for trav-sonable expense in the discharge of
elers with
their horses, teams, and this public duty." Rooney v. Ran-
carriages. Doherty V. Ayer, 197 dolph, 128 Mass. 580 582.
Lack of means as a defense see
infra notes 83-94.

Mass. 241. 83 NE 677. 125 AmSR 355, 14 LRANS 816: Richardson v. Danvers, 176 Mass. 413, 57 NE 688,

83. As affecting liability:

89. Lombar V. East Tawas, 86 Mich. 14, 48 NW 947; Whitfield v. Meridian. 66 Miss. 570, 6 S 244, 14 AmSR 596, 4 LRA 834. See Stone