91

90

may be assessed for the expense, or when the municipality has power to call on individuals to make the repairs. A town cannot defend on this ground if it has power to have the expense imposed on the county.92 The commissioners have discretion to apply the funds in making repairs according to what they consider the comparative urgency of such repairs, and the town is not liable for an error of judgment in this respect;93 but their discretion must be reasonably exercised, and they cannot, by determining to spend the money otherwise, excuse the failure to make a necessary repair at a trifling expense.9

94

But such ex

a defective plan of construction."
emption cannot be set up by a township upon which
the statute imposes the duty of keeping the high-
ways reasonably safe for travel.97

[§ 445] C. Roads and Portions Thereof to
Which Duty Extends 98--1. In General. If sub-
ject to any liability under the rules heretofore
stated,99 a municipality or public board charged
with the duty of maintaining public roads is liable
for injuries received on a regular public highway,
however established,1 from the time it is regularly
opened for travel. If the highway or defective
part is under the control of the municipality it is
immaterial that it was constructed by another.3
But the municipality is not liable for injuries re-
ceived on a road not public or one abandoned or
147, 145 NW 646; Donohue v. War. 102.
ren, 95 Wis. 367, 70 NW 305.
Man. Kennedy V. Portage la
Prairie, 12 Man. 634.
Ont.-Holland v. York Tp., 7 Ont.
L. 533, 3 OntWR 287.

Defective plan of construction.95 In some jurisdictions it has been held that a municipality is not liable for injuries resulting from conditions due to

v. Langworthy, 20 R. I. 602, 40 A 832 (where the statute required towns to keep their highways safe, they were not freed from liability by the expenditure of a reasonable sum in proportion to their taxable property in keeping the highway in repair).

90. New Albany v. McCulloch, 127 Ind. 500, 26 NE 1074; Shelby v. Clagett. 46 Oh. St. 549, 22 NE 407, 5 LRA 606.

91. Weed v. Ballston Spa, 76 N. Y. 329.

92. Winship v. Enfield, 42 N. H. 197; Glaub v. Goshen Tp., 7 Kulp (Pa.) 292. 93. Monk v. New Utrecht, 104 N. Y. 552, 11 NE 268. 94. Ivory v. Deerpark, 116 N. Y. 476, 22 NE 1080.

Que. Lalongé v. St. Vincent de
Paul Parish, 27 Que. Super. 218;
Duchene V. De Beauport, 23 Que.
Super. 80.

[a] Roads held public-Paulsen v. Wilton, 78 Conn. 58, 61 A 61 (vote of town directing repair); Green v. Canaan, 29 Conn. 157; Taylor V. Woburn, 130 Mass. 494 (repairs by town); Bliss v. Deerfield, 13 Pick. (Mass.) 102 (road paid for by order of the commissioners and traveled); Whitney v. Essex, 42 Vt. 520; Blodget v. Royalton, 14 Vt. 288 (conviction of town for not repairing). 95. As affecting liability for in- [b] Establishment by dedication. juries on city streets see Municipal-Rising v. Moreau, 68 Misc. 284, 125 Corporations [28 Cyc 13701. NYS 249; Folsom V. Underhill, 36 96. Monk v. New Utrecht, 104 Vt. 580; Hyde v. Jamaica, 27 Vt. N. Y. 552, 11 NE 268.

443.

[a] Failure to erect a barrier be- [c] Establishment by prescriptween the highway and a dangerous tion or user Garrett County V. excavation or declivity has been held Blackburn, 105 Md. 226. 66 A 31; not to be a defect in the plan so Bassett v. Harwich, 180 Mass. 585, 62 as to exempt the municipality from NE 974; Ivory v. Deerpark, 116 N. liability. Wood v. Gilboa, 76 Hun Y. 476, 22 NE 1080 [aff 6 NYSt 2]; 175, 27 NYS 586 [aff 146 N. Y. 383 Potter V. Castleton, 53 Vt. 435; mem, 42 NE 544 mem]; Maxim v. Coates v. Canaan, 51 Vt. 131; HanChampion, 50 Hun 88, 4 NYS 515 son v. Clinton, 156 Wis. 147, 145 NW [aff 119 N. Y. 626 mem, 23 NE 1144 646; Cartright v. Belmont, 58 Wis. mem]. And see Lane v. Hancock,370, 17 NW 237 (side track); Houfe 22 NYS 470 [rev on other grounds v. Fulton, 34 Wis. 608, 17 AmR 463. 142 N. Y. 510, 37 NE 473] (to same effect).

Liability of state or state officers see supra § 439.

97. Malloy V. Walker Tp., 77 Mich. 448, 43 NW 1012, 6 LRA 695. 98. City streets see Municipal Corporations [28 Cyc 1346].

99. See supra §§ 439-441. 1. Conn.-Paulsen V. Wilton. 78 Conn. 58, 61 A 61.

[d] Road on railroad right of way. A township is liable for a defect in a highway on a railroad right of way, not on the crossing itself, or the approach thereto, where the railroad existed before the highway crossing was created. Gage v. Pittsfield Tp.. 120 Mich. 436, 79 NW 687.

[e] Winter road.-Coates v. Canaan, 51 Vt. 131; Duchene V. De Beauport, 23 Que. Super. 80.

Me.-Todd v. Rome, 2 Me. 55 [f] Unimproved roads. (1) The Md.-Garrett County V. Black-liability imposed by Gen. Code burn, 105 Md. 226, 66 A 31. § 2408 on county commissioners in Mass.-Kellogg v. Northampton, 8 their official capacity for damages Gray 504; Hayden v. Attleborough, 7 from negligence in keeping roads in Gray 338; Stedman v. Southbridge, repair is not limited to improved 17 Pick. 162; Jones v. Andover, 6 roads, but includes any public, state, Pick. 59. or county road or bridge. Whitney Mich.-Gage v. Pittsfield Tp., 120 v. Niehaus, 21 Oh. Cir. Ct. N. S. 273, Mich. 436, 79 NW 687. 4 Oh. A. 208. (2) Under Rev. St. § 845, a county is liable for the negligence of the county commissioner in keeping roads in repair, but since the commissioners are not bound to keep unimproved county highways in repair the county is not liable for injuries sustained by a person. by reason of the conveyance in which she was riding sliding into a deep rut ΟΥ hole. Smith V. Williams County, 29 Oh: Cir. Ct. 610, 10 Oh. Cir. Ct. N. S. 115.

N. J.-Carter v. Rahway, 55 N. J. L. 177, 26 A 96 [aff 57 N. J. L. 196, 30 A 863].

N. Y.-Rising v. Moreau, 68 Mise. 284. 125 NYS 249.

N. D.-Coulter v. Great Northern
R. Co., 5 N. D. 568, 67 NW 1046.
Oh.-Whitney v. Niehaus. 21 Oh.
Cir. Ct. N. S. 273. 4 Oh. A. 208.
Or.--Buttle v. Douglas County, 87
Or. 105, 168 P 1180.

Pa-Bohn v. College Tp., 39 Pa.
Co. 572.

R. I.-Perry v. Sheldon, 30 R. I. 426, 75 A 690.

Vt.-Whitney v. Essex. 42 Vt. 520; Loveland v. Berlin, 27 Vt. 713 (pent road); Hyde v. Jamaica, 27 Vt. 443. Wis.-Hanson v. Clinton, 156 Wis.

4

Mo.-Hunter v. Weston, 111 Mo.
176, 19 SW 1098, 17 LRA 633.
Wash.-Tait V. King County, 85
Wash. 491, 148 P 586.

Ont.--Madill V. Caledon Tp., 3 Ont. L. 555, 1 OntWR 299 [dism app 3 Ont. L. 66].

[a] Approval by the board of county commissioners of a proposed plat and filing with the county auditor does not, where the public was not invited to use the roads, impose upon the county the duty of maintaining them safe for public travel. Tait v. King County, 85 Wash. 491, 148 P 586.

3. Me.-Bradbury
Me. 194.

V. Benton, 69
Mass.-Kellogg v. Northampton, 8
Gray 504.
På.-Dalton v. Upper Tyrone Tp.,
137 Pa. 18, 20 A 637.
Vt.-Potter V. Castleton, 53 Vt.
Wash.-Tait V. King County, 85
Wash. 491, 148 P 586.

435.

Wis.-Houfe V. Fulton, 34 Wis. 608. 17 AmR 463.

Que. Lalongé v. St. Vincent de Paul Parish, 27 Que. Super. 218 (road used by permission of owners).

[a] Rule applied.-A town is 11alle for injuries received through defects in a private road which was temporarily adopted by the town authorities as a substitute for a highway which was not in condition for use. Dickinson v. Rockingham, 45 Vt. 99.

Sidewalk constructed by individual see infra notes 28, 31.

4. Kan.-Irvin v. Finney County, 106 Kan. 171, 186 P 975.

Ky. Sinkhorn V. Lexington, etc., Turnp. Co., 112 Ky. 205, 65 SW 356, 23 KyL 1479.

Mich.-Brown v. Byron Tp., 189 Mich. 584, 155 NW 544.

N. H.-Watson v. Grand Trunk R. Co., 68 N. H. 170, 36 A 555; Spaulding v. Groton, 68 N. H. 77. 44 A 88 N. Y.-Farrell v. North Salem, 205 N. Y. 453, 98 NE 760 [rev 139 App. Div. 164. 123 NYS 486].

Pa.-Kaseman v. Sunbury, 197 Pa. 162, 46 A 1032.

R. I.-Williams V. Allen, 114 A
138.
S. C.-Hill v. Laurens County, 34
S. C. 141, 13 SE 318.
Tex.-Worthington V. Wade, 82
Tex. 26. 17 SW 520.
Vt.--Blodget v. Royalton, 14 Vt.

288.

Wis.-Bogie v. Waupun, 75 Wis. 1, 43 NW 667, 6 LRA 59.

[a] Roads held not public.Sinkhorn v. Lexington, etc., Turnp. Co., 112 Ky. 205. 65 SW 356, 23 KyL 1479 (turnpike road leased by county and maintained free of tolls out of tax funds); Watson v. Grand Trunk R. Co., 68 N. H. 170, 36 A 2. Me.-Lowell v. Moscow, 12 Me. 555 (where layout quashed); Hil v. Laurens County, 34 S. C. 141. 13 Mass.-Drury V. Worcester, 21 SE 318 (road laid out without auPick. 44; Bliss v. Deerfield, 13 Pick.thority); Bogie v. Waupun, 75 Wis.

Liability of individual when road not legally established see supra $ 442.

300.

§ 445]

HIGHWAYS

discontinued, unless the road is apparently still
open. The town may deny the existence of the
road as a public highway, even though it has re-
paired it, although in some cases it has been held
that a town is estopped by repairs to deny that
the road is public. But mere irregularities in
Where a town in
the layout cannot be set up.10
making a road deviates from the true location, it is
estopped to deny its liability to maintain the road
No liability exists for an injury
as constructed.11
occurring beyond the highway lines,12 although the
But where
line of the highway is not marked.13

the boundary line is not indicated by visible objects
and a traveler while keeping within the general
course of travel and close to the highway, and
within what he believes to be the highway, is in-
jured by a defect outside thereof, the municipality
will be liable as if the defect existed within the

1, 43 NW 667, 6 LRA 59 (temporary road across fields).

was

[b] The defect in a private driveway caused by lowering of the grade the town of the highway by not a defect for which the town was rendered liable by L. (1893) c 59 § 1, to a traveler other than the abutting owner, injured thereby in using the Robertson v. Monroe, (N. driveway.

14

V.

Doyle v. Vinalhaven, 66 Me. 348; Spaulding v. Groton, 68 N. H. 7 Attleborough, 77, 44 A 88. 14. Hayden ington, 4 Cush. (Mass.) 307; Davis Gray (Mass.) 338; Coggswell v. Lexv. Hill, 41 N. H. 329; Wheeler v. Westport, 30 Wis. 392.

highway, although such rule has not always been A county applied in the case of sidewalks.15 which uses and repairs a certain space on a road and invites the public to use it will be liable for failure to repair or guard against a defect suddenly created across it, although such defect is outside the limits of the road to which the county holds the legal title.16 Where defects outside of the highway combine with defects within the highway to cause an accident, there is no liability.17 While there Defects outside of traveled way. may be circumstances under which a municipality will be liable for injuries occurring outside of the traveled track,18 nevertheless the law ordinarily holds the municipality only to a duty to keep in repair the traveled portion of its roads, and it is not, as a general rule, liable for defects or obstructions outside of such portion,19 if it is reasonably See Compton v. Revere, 179 Mass. |dale v. Norton, 8 Metc. (Mass.) 388. Defects outside of traveled way 413, 60 NE 931 (holding that the see infra note 18 et seq. 13. fact that some wagons passed over the highway was insufficient to show that it was open for public travel). [a] Revocation of the right to a road without notice of such use for action injuries to an revocation does not constitute a deby an obstruction placed fense caused thereon. Dunn v. Gunn, 149 Ala, 583, H.) 109 A 495. [c] Highways not designated as 42 S 686. Duty to erect barriers or take othsuch.-A county is not liable for defects in a highway, unless it has er precautions see infra § 450. 7. Todd v. Rome, 2 Me. 55; Jones a county 146; Pick. (Mass.) Andover, 9 been duly designated as highway. Irvin v. Finney County, v. Wentworth v. Rochester, 63 N. H. 106 Kan. 171, 186 P 975. out, graded, 244; Wooley v. Rochester, 60 N. H. marked [d] Paths paved, repaired, and kept clear of 467; Tilton v. Pittsfield, 58 N. H. 327; or city, crossing Eames v. Northumberland, 44 N. H. snow by a town common ground used by the inhabi- 67; Hall v. Manchester, 39 N. H. 295. 8. Reed v. Cornwall, 27 Conn. 48; tants as a place of public resort or recreation, and serving as one means Bogie v. Waupun, 75 Wis. 1, 43 NW between public 667, 6 LRA 59 (by work on a tempo[a] In New Jersey, liability for of communication streets with which they connect, be-rary road to avoid snow drifts). 9. State v. Wilson, 42 Me. 9; Wil-injuries is not limited to "formed" tween posts such as are usual at the for liams v. Allen, (R. I.) 114 A 138; strip for convenience of travel, but 17 extends to any portion of roadway exclusive of entrance walks designated care v. Fulton, 34 Wis. 608, of overseers, are not ways Houfe Codner 463; v. Bradford, 3 under foot passengers, Krammer v. Clementon of sidewalk, "opened and dedicated to the public AmR [a] use," within the meaning of a stat- Pinn. (Wis.) 259, 3 Chandl. 291. The liability to repair may be Tp., 91 N. J. L. 69, 102 A 389. 19. U. S.--Hull v. Richmond, 12 81 ute making a town liable for damWoodbury, ages arising from defects in ways shown by the assumption of the Conn.-Seidel Oliver v. duty to repair and actual repairing F. Cas. No. 6,861, 2 Woodb. & M. 337. Williams v. so opened and dedicated. AmR from time immemorial. Conn. 65, 70 A 58; Tiesler v. NorWorcester, 102 Mass. 489, 3 Allen, (R. I.) 114 A 138. 10. Norris v. Haverhill, 65 N. H. wich, 73 Conn. 199, 47 A 161; Burr v. Plymouth, 48 Conn. 460. was Me.-Orr v. Oldtown, 99 Me. 190, on which the layout 89, 18 A 85 (as for instance that a petition made was insufficient in form); Ran-58 A 914; Tasker v. Farmingdale, 85 dall v. Conway. 63 N. H. 513, 3 A 635 (that the return was made late); Horne v. Rochester, 62 N. H. 347; Haywood v. Charlestown, 43 N. H. 61; Proctor v. Andover, 42 N. H. 348 (that layout was wider than petition prayed for).

485.

not accepted.[e] Highway Where the statute provides that a highway being improved by the state shall not be turned over to the local authorities until the state engineer has accepted the same, and notified the board of supervisors, the town in which the highway is being improved by contractors under a state contract has no jurisdiction over and is not liable for injuries caused by the defective condition of the highway prior to its acceptance by the state. Farrell v. North Salem, 205 N. Y. 453, 98 NE 760 [rev 139 App. NYS 486]. Div. 164, 123

11. Williams v. Cummington, 18 Pick. (Mass.) 312.

12.

15. 16.

See cases infra note 32. Neel v. King County, 53 Wash. 490, 102 P 396. 17. Richards v. Enfield, 13 Gray Rowell v. Lowell, 7 (Mass.) 344; Gray (Mass.) 100, 66 AmD 464.

18. Nolan v. Mansfield, 91 Conn. Me. 193; Cassedy v. 542, 100 A 438; Seidel v. Woodbury, 81 Conn. 65, 70 A 58; Bryant v. Vt. 391; Kelley v. And see Biddeford, 39 Stockbridge, 21 Fond du Lac, 31 Wis. 179. infra § 465.

V.

Me. 523, 27 A 464; Brown v. Skow-
365 (stone); Per-
hegan, 82 Me. 273, 19 A 399; Far-
rell v. Oldtown, 69 Me. 72; Blake v.
Newfield. 68 Me.
kins v. Fayette, 68 Me. 152, 28 AmR
v. Maine Tel. Co., 46 Me. 483.
84; Hall v. Unity, 57 Me. 529; Dickey

Mass.-Doherty v. Ayer, 197 Mass. 241, 83 NE 677, 125 AmSR 355, 14 Me.-Doyle v. Vinalhaven, 66 LRANS 816; Carey v. Hubbardston, Mass. 196, 38 NE Palmer, 162 Me. 348; Willey v. Ellsworth. 64 Me. 172 Mass. 106, 51 NE 521; Moran 57; Morgan v. Hallowell, 57 Me. 375. v. Mass.-Carey v. Hubbardston, 172 442; Harwood v. Oakham, 152 Mass. 100 Mass. Kellogg 255; 5. Nicodemo v. Southborough, 173 v. Mass. 106, 51 NE 521; Stone v. At-421, 25 NE 625; Macomber v. TaunMass. 455, 53 NE 887; Tinker 136 Mass. 24; Northampton, 4 Gray 65; Smith v. Clinton, V. 498; Howard Russell, 14 Pick. (Mass.) 279; Horey tleborough, 140 Mass. 328, 4 NE 570; ton, 124 N. Y. 273, 26 Lowe Haverstraw, v. Hawley, 123 Mass. 210; Wendell, 7 Cush. North Bridgewater, 16 Pick. 189. Mass. 50 110 V. Marcellus, Stockwell v. Fitchburg, Mich. Keyes NE 532; Bills v. Kaukauna, 94 Wis. Hawks 310, 68 NW 992. 189 Mich. 439, 15 NW 542, 45 AmR 52. V. Flathead Inde305; Tisdale v. Norton, 8 Metc. 388. v. Byron Tp., Mich.-Brown Mont. Howard Mich. 584, 155 NW 544.

V.

a

[a] A highway surveyor has no authority to make repairs upon to way which has been discontinued by order of the legislature, so as liable for defects the town make therein. Tinker v. Russell, 14 Pick. (Mass.) 279.

6. Ala-Dunn v. Gunn, 149 Ala. 583. 42 S 686.

Conn. Munson v. Derby, 37 Conn. 298, 9 AmR 332.

Kan-Higman v. Quindaro Tp., 89 Kan. 476, 132 P 215.

V.

V.

N. H.-Knowlton v. Pittsfield, 62 pendent Tel. Co., 49 Mont. 197, 141 N. H. 535.

Pa.-Worrilow v. Upper Chichester
Tp., 149 Pa. 40, 24 A 85.
Vt.--Sykes v. Pawlet, 43 Vt. 446,
5 AmR 295.

P 153.

N. H.-Willey v. Portsmouth, 35 N. H. 303.

N. Y.-Flansburg v. Elbridge, 205 N. Y. 423, 98 NE 750, 41 LRANS 101546; Hobart v. Tully, 152 App. Div. 902 mem, 136 NYS 1137 mem; Newell v. Stony Point, 59 App. Div. 237, V. North Sutphen NYS 583; 69 Hempstead, 80 Hun 409, 30 NYS 128; Cleveland v. Pittsford, 72 Hun 552, NE 543]; Short v. State, 109 Misc. 25 NYS 630 [aff 146 N. Y. 384. 42 617, 179 NYS 539.

Wis. Stricker v. Reedsburg, Wis. 457. 77 NW 897. [a] Extrinsic danger not a statutory defect. It was held that an innot occasioned by a "dePa. Snyder v. Penn Tp., 14 Pa. jury was fect or want of repair" in the highSuper. 145. W. Va.-Daniels v. Randolph Coun-way within the statute, when it was ty Ct., 69 W. Va. 676, 72 SE 782, received on an adjacent lot across which the person was attempting to 37 LRANS 1158. TisWis.-Bills v. Kaukauna, 94 Wis. travel owing to defects in the highway rendering it impassable. 310, 68 NW 992.

Pa.-Brophy v. Cleveland Tp., 236 Pa. 426, 84 A 822; Schaeffer v. Jack

straight 20 and wide enough 21 for passing,22 although it must take care of the whole of this.23 But the exemption from liability for defects or obstructions outside the traveled part does not apply to obstructions so near such part as to be dangerous to travelers thereon.24 The municipality will also be liable if it suffers the traveled part to be widened or extended by the work of others, or by travel, so as to lead travelers to go on any part within the limits as so widened, and an injury arises from a defect within such limits.25

immaterial that the walk was built by private persons if it is used by the traveling public,28 or the town has expended money for its maintenance and repair.29 This liability extends to a sidewalk constructed by a township on a turnpike road with the consent of the turnpike company.30 But a town is not liable for injuries from defective sidewalks the construction and maintenance of which is a purely private enterprise.31 Nor is it liable for defects on a part of the sidewalk outside of the line of the highway, although such line is not marked.32

Sidewalks. Counties 26 and towns 27 are commonly liable for a defective sidewalk; and it is son Tp., 150 Pa. 145, 24 A 629, 30 Osceola, 147 App. Div. 220, 132 NYS |268; Boltz v. Sullivan, 101 Wis. 608, AmSR 792, 18 LRA 100; Worrilow 28 [rev 71 Misc. 186, 128 NYS 341] 77 NW 870; Stricker v. Reedsburg, v. Upper Chichester Tp., 149 Pa. 40, (negligence not imputable to town 101 Wis. 457, 77 NW 897; Slivitski 24 A 85; Jackson Tp. v. Wagner, 127 superintendent because of the width v. Wein, 93 Wis. 460, 67 NW 730; Pa. 184, 17 A 903, 14 AmSR 833. of the road, where it was over ten Fitzgerald V. Berlin, 64 Wis. 203, R. I.-Waterhouse v. Calef, 21 R. and one half to twelve feet wide 24 NW 879; Cartright v. Belmont, 58 I. 470, 44 A 591. and the territory which it traversed Wis. 370, 17 NW 237; Cremer v. was sparsely settled, there being no Portland, 36 Wis. 92; Kelley v. Fond showing that other accidents had du Lac, 31 Wis. 179; Wheeler v. been caused by the narrowness of Westport, 30 Wis. 392; Houfe v. Fulthe road or that the superintendent ton, 29 Wis. 296, 9 AmR 568. had in recent improvements abridged its width).

Eng.-Fisher v. Prowse, 2 B. & S. 770, 110 ECL 770, 121 Reprint 1258, 12 ERC 603; Shoreditch v. Bull, 68 J. P. 415.

Ont.-Foley v. East Flamborough Tp., 26 Ont. A. 43.

Vt.-Ozier v. Hinesburgh, 44 Vt. 220; Whitney v. Essex, 38 Vt. 270. Wash.-Matson v. Pierce County, 94 Wash. 38, 161 P 846; Blankenship v. King County, 68 Wash. 84, 122 P 616, 40 LRANS 182. Wis. McChesney v. Dane County, R. I.-Williams v. Allen, 114 A 171 Wis. 234, 177 NW 12; Ham-138. macher v. New Berlin, 124 Wis. 249, Wash.-Matson v. Pierce County, 102 NW 489; Hebbe v. Maple Creek, 94 Wash. 38, 161 P 846; Blanken121 Wis. 668, 99 NW 442; Kelley v. ship_v. King County, 68 Wash. 84, [a] Hole near traveled way.-A Fond du Lac, 31 Wis. 179; Wheeler 122 P 616, 40 LRANS 182. township was liable for negligence v. Westport, 30 Wis. 392. See also Smith v. Kanawha Coun-in leaving unguarded, in the unty Court, 33 W. Va. 713, 11 SE 1, traveled part of a highway, for an 8 LRA 82 (no liability where horses unreasonable length of time, a hole are frightened by calves, although so near the traveled part that perthe road is only half the statutory sons would be likely to get into it width). in seeking to avoid a hole in the traveled part. Wakeham v. St. Clair Tp., 91 Mich. 15, 51 NW 696.

And see infra § 465.

[a] A township in a rural district is not required to keep its roads smooth for the full width at which they are laid out. Brophy v. Cleveland Tp., 236 Pa. 426, 84 A 822.

a

[b] Where a road was reasonably safe for ordinary travel but for the fact that plaintiff turned off the road and struck a log leaning upon bank with the lower end fixed at the side of the traveled way, there was no negligence of the county which would entitle plaintiff to recover for the injury. Matson v. Pierce County, 94 Wash. 38, 161 P 846.

22.

[b] Watering place as pitfall.-A town has been held liable for allowing a natural watering place within the original location of a highway, but outside the traveled portion, to become a deep miry pit, so that the horse of a traveler who v.drove it thereto was drowned. Cobb v. Standish, 14 Me. 198. Objects frightening infra § 449.

Hull v. Richmond, 12 F. Cas. No. 6,861, 2 Woodb. & M. 337; Perry Tp. v. John, 79 Pa. 412; Mochler v. Shaftsbury, 46 Vt. 580, 14 AmR 634. [a] Need not be passable by two teams, if this cannot be done without great expense, and the travel is small. Hull v. Richmond, 12 F. Cas. No. 6,861, 2 Woodb. & M. 337; Perry Tp. v. John, 79 Pa. 412; Mochler Shaftsbury, 46 Vt. 580, 14 AmR 634. [c] Bowlders eighteen feet from But see Fopper v. Wheatland, 59 the traveled way, forming a guard Wis. 623, 18 NW 514 (to the effect on the edge of an embankment suffi-that the town is liable if the highcient to keep a wagon from going in the ditch. do not constitute an actionable defect in the highway. Waterhouse v. Calef, 21 R. I. 470, 44 A 591.

or

way is not wide enough for teams to
pass and teams cannot see each other
till very near).

23. Potter V. Castleton, 53 Vt.
435; Bagley v. Ludlow, 41 Vt. 425;
Matthews v. Baraboo, 39 Wis. 674
(so holding, although the road is
wide enough for three or four teams
abreast).

24. Conn.-Seeley v. Litchfield, 49 Conn. 134, 44 AmR 213; Hewison v. New Haven, 34 Conn. 136, 91 AmD 718.

[d] A carriage block not projecting into the usual place of travel so as to be a hindrance to travelers, a source of danger to persons passing along the usual line of travel, in the exercise of due care, is not a defect for which the municipality is liable. Tiesler v. Norwich, 73 Conn. 199, 47 A 161. [e] A shade tree eighteen and from one-quarter inches the outer edge of the running board of an 607. electric car is not an obstruction Me.-Bryant v. Biddeford, 39 Me. which it is the duty of a town to re-193;

constitutes

traveled

Ind. Fowler v. Linquist, 138 Ind. 566, 37 NE 133.

Iowa.-Mosher v. Vincent, 39 Iowa

Johnson v. Whitefield, 18 Me.
Mass.-Tilton V. Wenham, 172
Mass. 407. 52 NE 514; Moran V.
Palmer, 162 Mass. 196, 38 NE 442;
Kellogg v. Northampton, 4 Gray 65;
Snow v. Adams. 1 Cush. 443; Bige-
low v. Weston, 3 Pick, 267.

Hall v. Wakefield, 184 Mass. 286, 36 AmD 721.
move.
147, 68 NE 15.
[f] What
part. The traveled portion of
highway is not confined to the part
actually used the greater portion of
the time by vehicles, but is that
part which is held open to the public
as a highway and which is used in
passing other teams. Newell
Stony Point, 59 App. Div. 237, 69
NYS 583.

Mich.-Wakeham v. St. Clair Tp.,
91 Mich. 15. 51 NW 696.
V. N. H.-Willey v. Portsmouth, 35
N. H. 303.

Holes near city streets see Municipal Corporations [28 Cyc 1383]. 20. Wheeler v. Westport, 30 Wis.

N. Y.-Eggleston V. Columbia
Turnpike Road, 82 N. Y. 278 [aff
18 Hun 146].

Pa.-Weida v. Hanover Tp., 30 Pa.
Super. 424.

R. I.-Yeaw v. Williams, 15 R. I.
20, 23 A 33.

Vt.-Drew v. Sutton, 55 Vt. 586, 45
AmR 644: Morse
41
v. Richmond,
Vt. 435. 98 AmD 600; Cassedy v.
Stockbridge, 21 Vt. 391.

Wis. Johnson v. Iron River, 149
Wis. 139. 135 NW 522; Carlon V.
Greenfield. 130 Wis. 342,
110
NW

horses see

25. Tilton v. Wenham, 172 Mass. 407, 52 NE 514; Moran v. Palmer, 162 Mass. 196, 38 NE 442; Aston v. Newton, 134 Mass. 507, 45 AmR 347; Weare v. Fitchburg, 110 Mass. 334; Saltmarsh v. Bow, 56 N. H. 428; Willey Portsmouth, 35 N. H. 303; Potter v. Castleton, 53 Vt. 435; Ozier V. Hinesburgh, 44 Vt. 220; Whitney V. Essex, 42 Vt. 520; Cartright v. Belmont, 58 Wis. 370, 17 NW 237.

V.

[a] A town which permits a turnout to exist from the highway to a private way, with all the characteristics of a highway, will be bound to keep in repair such part of the turnout as is within the laid-out limits of the highway. Stark v. Lancaster. 57 N. H. 88. Bullock V. Yakima Valley Transp. Co., 108 Wash. 413, 184 P 641, 187 P 410.

26.

27. Gould V. Boston, 120 Mass. 300; Weare v. Fitchburg, 110 Mass. 334; Welton v. Crystal Tp., 152 Mich. 486, 116 NW 390; Birngruber v. Eastchester, 54 App. Div. 80. 66 NYS 278; Hammacher v. New Berlin, 124 Wis. 249, 102 NW 489.

28. Lambert v. Pembroke, 66 N. H. 280, 23 A 81; McHugh v. Minocqua, 102 Wis. 291, 78 NW 478. 29. Welton V. Crystal Tp., 152 Mich. 486, 116 NW 390. 30. Gaughens V. Lower Merion Tp.. 46 Pa. Super. 63.

31. Van Buren v. Bethlehem, 178 App. Div. 254, 164 NYS 964: Kibner v. State, 114 Misc. 444, 186 NYS 654. 32. Lorenzo V. Wirth, 170 Mass. 596, 49 NE 1010, 40 LRA 347: Damon v. Boston, 149 Mass. 147, 21 NE 235; Stone v. Attleborough, 140 Mass. 328, 4 NE 570; Stockwell v. Fitch

40. Cross references:
Mich.-Handy v. Meridian Tp., 114
Defects or obstructions caused by: Mich. 454, 72 NW 251.
Individual see supra § 442.

State see supra § 439.
Liability for injuries on city streets
see Municipal Corporations [28
Cyc 1366 et seq].

Question for jury see infra § 486.
41. Conn. Hewison v. New Haven,
34 Conn. 136, 142, 91 AmD 718.
Kan. Reading Tp. v. Telfer, 57
Kan. 798, 48 P 134, 57 AmSR 355.
Mass. -Cook V. Charlestown, 13
Allen 190 note; Hixon v. Lowell, 13
Gray 59.

N. Y.-Whitney v. Ticonderoga, 53
Hun 214, 6 NYS 844 [aff 127 N. Y.
40, 27 NE 403].

Mich.--Long V. Weare Tp., 195
Mich. 706, 162 NW 332; Speck v.
Bruce Tp., 166 Mich. 550, 556, 132
NW 114, 35 LRANS 203 [quot Cyc].
N. Y.-Snowden v. Somerset, 171
N. Y. 99, 63 NE 952; Buffalo V. Pa. Com. v. Erie, etc., R. Co.,
Holloway, 7 N. Y. 493, 57 AmD 550; Pa. 339, 67 AmD 471.
Snowden v. Somerset, 52 App. Div. Wash. Archibald v. Lincoln Coun-
84, 64 NYS 1088; Tompert v. Hast-ty, 50 Wash. 55, 96 P 831.
ings Pavement Co., 35 App. Div. 578, W. Va.-Williams v. Main Island
55 NYS 177.
Creek Coal Co., 83 W. Va. 464, 98
SE 511.

Wis.-Johnson v. Iron River, 149
Wis. 139, 135 NW 522; Chase v.
Oshkosh, 81 Wis. 313, 51 NW 560,
29 AmSR 898, 15 LRA 553.

Pratt v. Cohasset, 177 Mass. [a] Illustration.-A town is li- 488, 59 NE 79; Elliot v. Concord, 27 able for injuries to a traveler on a N. H. 104; Hoch v. Butler Tp., 232 defective highway in winter, caused Pa. 454, 81 A 546; Kennedy v. Linby the negligence of the commission-coln, 122 Wis. 301, 99 NW 1038. er of highways in failing to keep a [a] Projecting gas pipe.-Lamb sluiceway at the point of the acci- v. Pike Tp., 215 Pa. 516, 64 A dent in good order, where such neg- 671. lect caused a more serious defect in the highway in the winter following the neglect than would have occurred otherwise. Walker v. Pittsfield, 198 N. Y. 559, 91 NE 589.

[a] Precautions held insufficient. -The posting of signs on a road which was being repaired, stating that it was closed for travel, was not sufficient to relieve the county [b] The term "defective highfrom liability, where there were no ways" as used in a statute imposing barriers and the signs were not such upon towns liability for damage by as would have warned an ordinarily reason of defective highways is used prudent traveler, and to the knowl-in reference to their condition for edge of the county authorities the public travel upon them which their road was being used by the public. designation as highway imports and Brubaker v. Iowa County, (Wis.) 183 in view of the purpose for which NW 690. they are established and maintained. Whitney v. Ticonderoga, 127 N. Y. 40, 27 NE 403. V. Bruce [c] The obstruction

wholly stop travel to render
town liable it is sufficient if travel
be impeded. Chase v. Oshkosh, 81
Wis. 313. 51 NW 560, 29 AmSR 898,
15 LRA 553.

Allegations as to nature and loca-
tion of defects see infra § 476.
42. Nicol v. Beaumont, 53 L. J.
Ch. 853.

43. Beebe v. Scott's Bluff County,
92 Nebr. 501, 138 NW 737; Chandler
v. Davidson County, 142 Tenn. 265,
218 SW 222; Whyler V. Bingham
Rural Dist., [1901] 1 K. B. 45.

[a] Illustration. For a county to allow an open ditch nearly a mile in length, from six to eight feet wide, [a] Defendant cannot be held 1- and with a depth of from twenty-six able for collision with a barricade to thirty-four inches, to remain for on the theory that such obstruction nearly four years in the center of is active wrongdoing. Symons V. the public road may render it liable Warren, 88 N. J. L. 466. 97 A 60. for an injury caused thereby. Beebe 39. Nicodemo V. Southborough, v. Scott's Bluff County, 92 Nebr. 501, 173 Mass. 455, 53 NE 887; Brewer v. 138 NW 737. Sullivan County, 199 Pa. 594, 49 A 44. Md 259.

Hartford County V.
Hause, 106 Md. 439, 67 A 273.

snowfall, actionable defects for which the town is liable.62 There is no liability for injuries caused by objects while being moved by human direction, and which are neither fixed to nor stationary in one position within the highway.63 Accordingly the municipality has been held free from liability for injuries by sleds on which persons were coasting, or for injuries to one struck by a locomotive on a railroad track illegally laid on the highway,65 although it has been held that, where an employee of a county causes a motor truck to strike another vehicle, the county is liable under a statute imposing liability for defects in highways.66 Towns

are not commonly liable for latent defects in the roads, unless the town should have known of the defect and repaired it;68 nor for obstructions casually placed there;69 nor for extraordinary events,70 [aff 92 Hun 269, 36 NYS 672]; Ring [d] Telegraph pole. Young V. v. Cohoes, 77 N. Y. 83, 33 AmR Yarmouth, 9 Gray (Mass.) 386. 574.

Pa.-Schaeffer v. Jackson Tp., 150 Pa. 145, 24 A 629, 30 AmSR 792, 18 LRA 100; Zirkman v. Philadelphia, etc., Tract. Co., 33 Pa. Super. 85. Wis.-Berg v. Auburn, 140 Wis. 492, 122 NW 1041.

Eng. Reg. v. Longton Gas Co., Ltd., 2 E. & E. 651, 105 ECL 651, 121 Reprint 244; Dixon v. Chester, 70 J. P. 380; Preston v. Fullwood Local Bd., 50 J. P. 228.