CHAPTER XII.
OMNIBUSES, STAGES, AND HORSE-CARS.
Nearly every one has occasion, more or less often, to travel over the public ways in the coaches of passenger carriers. Whoever undertakes to carry passengers and their baggage for hire from place to place is bound to use the utmost care and diligence in providing safe and suitable coaches, harnesses, horses, and coachmen, in order to prevent such injuries as human care and foresight can guard against.
If an accident happens from a defect in the coach or harness which might have been discovered and remedied upon careful and thorough examination, such accident must be ascribed to negligence, for which the owner is liable in case of injury to a passenger happening by reason of such accident.
On the other hand, where the accident arises from a hidden and internal defect, which careful and thorough examination would not disclose, and which could not be guarded against by the exercise of sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury, but the misfortune must be borne by the sufferer as one of that class of injuries for which the law can afford no redress in the form of a pecuniary recompense.
If a passenger, in peril arising from an accident for which the proprietors are responsible, is in so dangerous a situation as to render his leaping from the coach an act of reasonable precaution, and he leaps therefrom and breaks a limb, the proprietors are answerable to him in damages, though he might safely have retained his seat.52
When the proprietors of stages or street-car coaches, which are already full and overloaded, stop their coaches, whether at the signal or not of would-be passengers, and open the doors for their entrance, they must be considered as inviting them to ride, and thereby assuring them that their passage will be a safe one, at least so far as dependent upon the exercise of reasonable and ordinary care, diligence, and skill, on their part, in driving and managing their horses and coaches; and, in fact, they are rather to be held responsible for such increased watchfulness and solicitous care, skill, and attention, as the crowded condition of the vehicle requires. If, under such circumstances, a passenger is thrown out of or off the coach by its violent jerk at starting or stopping, or in any other way through the negligence of the proprietors or their agents, he may hold them liable for his injuries.53A passenger must pay his fare in advance, if demanded, otherwise he may have to pay a fine for evading fare; and if he is riding free, the proprietors are not responsible, except for gross negligence; and he must also properly and securely pack his baggage, if he expects to recover damages in case of loss. A mail-coach is protected by act of Congress from obstructions, but is subject in all other respects to "the law of the road."54
If the proprietors of coaches used for the common carriage of persons are guilty of gross carelessness or neglect in the conduct and management of the same while in such use, they are liable to a fine not exceeding five thousand dollars, or to imprisonment not exceeding three years.55And if a driver of a stage-coach or other vehicle for the conveyance of passengers for hire, when a passenger is within or upon such coach or vehicle, leaves the horses thereof without some suitable person to take the charge and guidance of them, or without fastening them in a safe and prudent manner, he may be imprisoned two months or fined fifty dollars.56
CHAPTER XIII.
PURPOSES FOR WHICH HIGHWAYS MAY BE USED.
As before intimated, the public ways are mainly for the use of travellers; but in the progress of civilization it has become convenient and necessary to use them for other purposes of a public nature. It is the great merit of the common law, that while its fundamental principles remain fixed from generation to generation, yet they are generally so comprehensive and so well adapted to new institutions and conditions of society, new modes of commerce, new usages and practices, that they are capable of application to every phase of society and business life. Time and necessity, as well as locality, are important elements in determining the character of any particular use of a public way. Many public ways are now used for gas, water-pipes, and sewers, because the public health and convenience are subserved by such use.57They are also used for the transmission of intelligence by electricity, and the post-boy and the mail-coach are disappearing.
The horse-railroad was deemed a new invention; but it was held that a portion of the road might well be set aside for it, although the rights of other travellers to some extent were limited by the privileges necessary for its use.58
And now motor cars and elevated railroads are making their appearance in the centres of civilized life, and the bicycle and tricycle are familiar objects on all the great thoroughfares. Should human ingenuity discover any new modes of conveying persons and property over the public ways, or of transmitting intelligence along the same, which should prove convenient to the everyday life of humanity, no doubt the highway law will be found applicable to all the needs of advancing civilization. The underlying principle of the law is that every person may use the highway to his own best advantage, but with a just regard to the like rights of others. The law does not specify what kind of animals or vehicles are to be allowed upon the road, but leaves every case to be decided as it shall arise, in view of the customs and necessities of the people from time to time. All persons may lawfully travel upon the public ways with any animal or vehicle which is suitable for a way prepared and intended to afford the usual and reasonable accommodations needful to the requirements of a people in their present state of civilization; but if any person undertakes to use or travel upon the highway in an unusual or extraordinary manner, or with animals, vehicles, or freight not suitable or adapted to a way opened and prepared for the public use, in the common intercourse of society, and in the transaction of usual and ordinary business, he then takes every possible risk of loss and damage upon himself.59
If a party leads a bull or other animal through a public way without properly guarding and restraining the same, and for want of such care and restraint people rightfully on the way and using due care are injured, the owner of the animal is responsible, because under such circumstances he is bound to use the utmost care and diligence, especially in villages and cities, to avoid injuries to people on the road.60So, if a man goes upon the highway with a vehicle of such peculiar and unusual construction, or which is operated in such a manner, as to frighten horses and to create noise and confusion on the road, he is guilty of an indictable offence and answerable in damages besides. An ycleped velocipede in the road has been held in Canada to be a nuisance, and its owner was indicted and found guilty of a criminal offence.61In England a man who had taken a traction steam-engine upon the road was held liable to a party who had suffered damages by reason of his horses being frightened by it.62It has been held to be a nuisance at common law to carry an unreasonable weight on a highway with an unusual number of horses.63And so it is a nuisance for a large number of persons to assemble on or near a highway for the purpose of shouting and making a noise and disturbance; and likewise it is a nuisance for one to make a large collection of tubs in the road, or to blockade the way by a large number of logs, cattle, or wagons; for, as Lord Ellenborough once said, the king's highway is not to be used as a stable or lumber yard.
Towns and cities have authority to make such by-laws regulating the use and management of the public ways within their respective limits, not repugnant to law, as they shall judge to be most conducive to their welfare.64They may make such by-laws to secure, among other things, the removal of snow and ice from sidewalks by the owners of adjoining estates; to prevent the pasturing of cattle or other animals in the highways; to regulate the driving of sheep, swine, and neat cattle over the public ways; to regulate the transportation of the offal of slaughtered cattle, sheep, hogs, and other animals along the roads; to prohibit fast driving or riding on the highways; to regulate travel over bridges; to regulate the passage of carriages or other vehicles, and sleds used for coasting, over the public ways; to regulate and control itinerant musicians who frequent the streets and public places; and to regulate the moving of buildings in the highways. Many people are inclined to make the highway the receptacle for the surplus stones and rubbish around their premises, and to use the wayside for a lumber and wood yard; and some farmers are in the habit of supplying their hog-pens and barn cellars with loam and soil dug out of the highway.
Again, some highway surveyors have very little taste for rural beauty, and show very poor judgment, and perhaps now and then a little spite, in ploughing up the green grass by the roadside and sometimes in front of houses. These evils can be remedied by every town which will pass suitable by-laws upon the subject and see that they are enforced. Such by-laws might provide that no one should be allowed to deposit within the limits of the highway any stones, brush, wood, rubbish, or other substance inconvenient to public travel; that no one should be permitted to dig up and carry away any loam or soil within the limits of the highway; and that no highway surveyor should be allowed to dig or plough up the greensward in front of any dwelling-house, or other building used in connection therewith, without the written direction or consent of the selectmen.
CHAPTER XIV.
USE OF HIGHWAYS BY ADJOINING OWNERS.
The owner of land adjoining a highway ordinarily owns to the middle of the road; and while he has the same rights as the public therein, he also has, in addition thereto, certain other rights incident to the ownership of the land over which the road passes. When land is taken for a highway, it is taken for all the present and prospective purposes for which a public thoroughfare may properly be used, and the damages to the owner of the land are estimated with reference to such use; but the land can be used for no other purpose, and when the servitude ceases the land reverts to him free from encumbrance. During the continuance of the servitude he is entitled to use the land, subject to the easement, for any and all purposes not incompatible with the public enjoyment. If the legislature authorizes the addition of any new servitude, essentially distinct from the ordinary use of a highway, like an elevated railroad, then the land-owner is entitled to additional compensation; for it cannot be deemed, in law, to have been within the contemplation of the parties, at the time of the laying out of the road, that it might be used for such new and additional purposes. It has been held in New York, Illinois, and some of the United States circuit courts, that the use of a highway for a telegraph line will entitle such owner to additional compensation; but in the recent case of Piercev.Drew65the majority of our Supreme Court decided that the erection of a telegraph line is not a new servitude for which the land-owner is entitled to additional compensation.
A minority of the court, in an able argument, maintained that the erection of telegraph and telephone posts and wires along the roads, fitted with cross-beams adapted for layer after layer of almost countless wires, which necessitate to some extent the destruction of trees along the highways or streets, the occupation of the ground, the filling of the air, the interference with access to or escape from buildings, the increased difficulty of putting out fires, the obstruction of the view, the presentation of unsightly objects to the eye, and the creation of unpleasant noises in the wind, is an actual injury to abutting land along the line, and constitutes a new and increased servitude, for which the land-owner is entitled to a distinct compensation. After the rendering of the majority decision, the legislature very promptly passed a law allowing an owner of land abutting upon a highway along which telegraph or telephone, electric light or electric power, lines shall be constructed, to recover damages to the full extent of the injuries to his property, provided he applies, within three months after such construction, to the mayor and aldermen or selectmen to assess and appraise his damage.66
The public has a right to occupy the highway for travel and other legitimate purposes, and to use the soil, the growing timber, and other materials found within the space of the road, in a reasonable manner, for the purpose of making and repairing the road and the bridges thereon.67But the public cannot go upon the land of an adjoining owner without his consent, to remove stones or earth, to repair a bridge or the highway; and if in consequence of such removal the land is injured, by floods or otherwise, he can recover damages therefor.68He is not obliged to build or maintain a road fence, except to keep his own animals at home, but if he does build a fence he must set it entirely on his own land; and likewise, if a town constructs an embankment to support a road or bridge, it must keep entirely within the limits of the highway, for if any part of the embankment is built on his land he can collect damages of the town.69He may carry water-pipes underground through the highway, or turn a watercourse across the same below the surface, provided he does not deprive the public of their rights in the way.70From the time of Edward IV. it has been the settled law that the owner of the soil in the highway is entitled to all the profits of the freehold, the grass and trees upon it and the mines under it. He can lawfully claim all the products of the soil and all the fruit and nuts upon the trees. He may maintain trespass for any injury to the soil or to the growing trees thereon, which is not incidental to the ordinary and legitimate uses of the road by the public. His land in the highway may be recovered in ejectment just the same as any of his other land. No one has any more right to graze his highway land than his tillage land.71He may cut the hay on the roadside, gather the fruit and crops thereon, and graze his own animals there; and the by-laws of the cities and towns preventing the pasturing of cattle and other animals in the highway are not to affect his right to the use of land within the limits of the road adjoining his own premises.72
It is not one of the legitimate uses of the highway for a traveller or a loafer to stop in front of your house to abuse you with blackguardism, or to play a tune or sing a song which is objectionable to you; and if you request him to pass on and he refuses to go, you may treat him as a trespasser and make him pay damages and costs, if he is financially responsible.73And likewise, if any person does anything on the highway in front of your premises to disturb the peace, to draw a crowd together, or to obstruct the way, he is answerable in damages to you and liable to an indictment by the grand jury.74
Although the owner of the fee in a highway has many rights in the way not common to the public, yet he must exercise those rights with due regard to the public safety and convenience. Perhaps, in the absence of objections on the part of the highway surveyor, or of prohibitory by-laws on the part of the town, he has a right to take soil or other material from the roadside for his own private use, but he certainly has no right to injure the road by his excavations, or to endanger the lives of travellers by leaving unsafe pits in the wayside. He can load and unload his vehicles in the highway, in connection with his business on the adjoining land, but it must be done in such a manner as not unreasonably to interfere with or incommode the travelling public. When a man finds it necessary to crowd his teams and wagons into the street, and thereby blockade the highway for hours at a time, he ought either to enlarge his premises or remove his business to some more convenient spot. He has a right to occupy the roadside with his vehicles, loaded or unloaded, to a reasonable extent; but when he fills up the road with logs and wood, tubs and barrels, wagons and sleighs, pig-pens and agricultural machinery, or deposits therein stones and rubbish, he is not using the highway properly, but is abusing it shamefully, and is responsible in damages to any one who is injured in person or property through his negligence, and, moreover, is liable to indictment for illegally obstructing the roadway.75As before said, he has a perfect right to pasture the roadside with his animals; but if he turns them loose in the road, and they there injure the person or property of any one legally travelling therein, he is answerable in damages to the full extent of the injuries, whether he knows they have any vicious habits or not.76If his cow, bull, or horse, thus loose in the highway, gore or kick the horse of some traveller, he is liable for all damages;77and in one instance a peaceable and well-behaved hog in the road cost her owner a large sum of money, because the horse of a traveller, being frightened at her looks, ran away, smashed his carriage, and threw him out.78
As an offset to his advantages as adjoining owner there are a few disadvantages. Highways are set apart, among other things, that cattle and sheep may be driven thereon; and as, from the nature of such animals, it is impossible even with care to keep them upon the highways unless the adjoining land is properly fenced, it follows that when they are driven along the road with due care, and then escape upon adjoining land and do damage their owner is not liable therefor, if he makes reasonable efforts to remove them as speedily as possible.79Likewise, if a traveller bent upon some errand of mercy or business finds the highway impassable by reason of some wash-out, snowdrift, or other defect, he may go round upon adjoining land, without liability, so far as necessary to bring him to the road again, beyond the defect.80If a watercourse on adjoining land is allowed by the land-owner to become so obstructed by ice and snow, or other cause, that the water is set back, and overflows or obstructs the road, the highway surveyor may, without liability, enter upon adjoining land and remove the nuisance, if he acts with due regard to the safety and protection of the land from needless injury.81
A town or city has a right, in repairing a highway, to so raise the grade or so construct the water-bars within its limits, as to cause surface water to flow in large quantities upon adjoining land, to the injury of the owner thereof; but, on the other hand, the land-owner has a right to cause, if he can, the surface water on his land to flow off upon the highway, and he may lawfully do anything he can, on his own land, to prevent surface water from coming thereon from the highway, and may even stop up the mouth of a culvert built by a town across the way for the purpose of conducting such surface water upon his land, providing he can do it without exceeding the limits of his own land.82
When the owner of land is constructing or repairing a building adjoining the highway, it is his duty to provide sufficient safeguards to warn and protect passing travellers against any danger arising therefrom; and if he neglects to do so, and a traveller is injured by a falling brick, stick of timber, or otherwise, he is responsible.83
If the adjoining owner of a building suffers snow and ice to accumulate on the roof, and allows it to remain there for an unusual and unreasonable time, he is liable, if it slides off and injures a passing traveller.84And, generally, the adjoining owner is bound to use ordinary care in maintaining his own premises in such a condition that persons lawfully using the highway may do so with safety.
The general doctrine as to the use of property is here, as elsewhere,Sic utere tuo ut alienum non lædas,—"So use your own property as not to injure the rights of another." If you make an excavation on your land so near to a highway that travellers are liable accidentally to fall therein, you had better surround it with a fence or other safeguard sufficient to protect reasonably the safety of travellers. If you have any passage-ways, vaults, coal-holes, flap-doors, or traps of any kind on your premises, which are dangerous for children or unwary adults, you had better abolish them, or at any rate take reasonable precaution to cover or guard them in such manner as ordinary prudence dictates, and especially if they are near the highway; for if you do not you may, some time when not convenient for you, be called upon to pay a large claim for damages or to defend yourself against an indictment. But if you have so covered and guarded them, and by the act of a trespasser, or in some other way without fault on your part, the cover, fence, or guard is removed, you are not liable until you have had actual or constructive notice of the fact, and have had reasonable opportunity to put it right.85
CHAPTER XV.
PRIVATE WAYS.
A private way is the right of passage over another man's land. It may be established and discontinued in the same manner as a public way, and it may also arise from necessity. A way of necessity is where a person sells land to another which is wholly surrounded by his own land, or which cannot be reached from the public highways or from the land of the purchaser. In such case the purchaser is unable to reach his land at all unless he can go over some of the surrounding estates; and inasmuch as he cannot go over the premises of those who are strangers to him, in law, and inasmuch as public policy and simple justice call for a passage-way to his land, for his use in the care and cultivation of it, the law gives him a way of necessity over his grantor's land, which runs with his land, as appurtenant thereto, so long as the necessity exists, even if nothing is said in the deed about a right of way, because it is presumed that when the grantor sells the land he intends to convey with it a right of way, without which it could not be used and enjoyed; but when the necessity ceases, the right ceases also.86In the absence of contract, it belongs to the owner of a private way to keep it in repair,87and for this purpose he may enter upon the way and do whatever is necessary to make it safe and convenient; but if in so doing he removes soil and stones which are not needed on the way, such surplus material belongs to the owner of the land over which the way passes.88If a defined and designated way becomes impassable for want of repair or by natural causes, the owner of the way has not the right of a traveller on a public road to go outside the limits of the way in order to pass from one point to another.89But if the owner of the land obstructs the way, a person entitled to use it may, without liability, enter upon and go over adjoining land of the same owner, provided he does no unnecessary damage.90The reason for this distinction in the law between a public and a private way is that in the case of a private way the owner of the way, who alone has the right to its use, is bound to keep it in repair, whereas in the case of a public way the traveller is under no obligation to keep it in passable condition. A private way once established cannot be re-located except with the consent of both the owner of the land and of the way; but if both are agreed, the old way may be discontinued and re-located in another place.91The owner of the soil of a private way may, the same as the owner of the fee in a highway, make any and all uses thereof to which the land can be applied.92In the absence of agreement to the contrary, he may lawfully and without liability cover such way with a building or other structure, if he leaves a space so wide, high, and light that the way is substantially as convenient as before for the purpose for which it was established.93And so, in the absence of agreement, he may maintain such fences across the way as are necessary to enable him to use his land for agricultural purposes, but he must provide suitable bars or gates for the use and convenience of the owner of the way. He is not required to leave it as an open way, nor to provide swing gates, if a reasonably convenient mode of passage is furnished; and if the owner of the way or his agents leave the bars or gates open, and in consequence thereof damage is done by animals, he is liable to respond in damages.94"The law of the road" applies as well to private as to public ways, as the object of the law is to prescribe a rule of conduct for the convenience and safety of those who may have occasion to travel, and actually do travel, with carriages on a place adapted to and fitted and actually used for that purpose.95The description of a way as a "bridle-road" does not confine the right of way to a particular class of animals or special mode of use, but it may be used for any of the ordinary purposes of a private road.96
CHAPTER XVI.
DON'T.
In school, church, and society many things are taught by the prohibitory don't; and thus many rules of law relating to public and private ways may be taught and illustrated in the same way. For instance:—
Don't ever drink intoxicating liquor as a beverage, at least in large quantities. If you ever have occasion to use it at all, use it very sparingly, especially if you are travelling or are about to travel with a team; for if you should collide with another team, or meet with an accident on account of a defect in the way, in a state of intoxication, your boozy condition would be some evidence that you were negligent. The law, however, is merciful and just, and if you could satisfy the court or jury that notwithstanding your unmanly condition you were using due care, and that the calamity happened through no fault of yours, you would still be entitled to a decision in your favor; but when you consider how apt a sober human mind is to think that an intoxicated mind is incapable of clear thought and intelligent action, I think you will agree with the decisions of the courts, which mean, when expressed in plain language, "You had better not be drunk when you get into trouble on the highway."97
Don't ever approach a railway crossing without looking out for the engine while the bell rings, and listening to see if the train is coming; for there is good sense as well as good law in the suggestion of Chief Baron Pollock, that a railway trackper seis a warning of danger to those about to go upon it, and cautions them to see if a train is coming. And our court has decided that when one approaches a railway crossing he is bound to keep his eyes open, and to look up and down the rails before going upon them, without waiting for the engineer to ring the bell or to blow the whistle.98It is a duty dictated by common sense and prudence, for one approaching a railway crossing to do so carefully and cautiously both for his own sake and the sake of those travelling by rail. If one blindly and wilfully goes upon a railway track when danger is imminent and obvious, and sustains damage, he must bear the consequences of his own rashness and folly.
Don't drive horses or other animals affected by contagious diseases on the public way, or allow them to drink at public watering-places, or keep them at home, for that matter. The common law allows a man to keep on his own premises horses afflicted with glanders, or sheep afflicted with foot-rot, or other domestic animals afflicted with any kind of diseases, provided he guards them with diligence and does not permit them to escape on to his neighbor's land or the public way. But under the statute law of this State, a man having knowledge of the existence of a contagious disease among any species of domestic animals is liable to a fine of five hundred dollars, or imprisonment for one year, if he does not forthwith inform the public authorities of such disease.99Aside from the penalty of the statute law, it is clearly an indictable offence for any one to take domestic animals affected with contagious diseases, knowing or having reason to know them to be so affected, upon the public ways, where they are likely to give such diseases to sound animals; and he would be answerable in damages, besides.100
If you are afflicted with a contagious or infectious disease, don't expose yourself on a highway or in a public place; and don't expose another person afflicted with such disease, as thereby you may jeopardize the health of other people, and your property also, in case you should be sued by some one suffering on account of your negligence.101
When there is snow on the ground, and the movement of your sleigh is comparatively noiseless, don't drive on a public way without having at least three bells attached to some part of your harness, as that is the statute as well as the common law. By the statute law you would be liable to pay a fine of fifty dollars for each offence. And by the statute and common law, in case of a collision with another team, you would probably be held guilty of culpable negligence and made to pay heavy damages. Of course you would be allowed to show that the absence of bells on your team did not cause the accident or justify the negligence of the driver of the other team, but it would be a circumstance which would tell against you at every stage of the case.102
If you have no acquaintance with the nature and habits of horses, and no experience in driving or riding them, don't try to ride or drive any of them on a public way at first, but confine your exercise in horsemanship to your own land until you have acquired ordinary skill in their management; for the law requires every driver or rider on a highway to be reasonably proficient in the care and management of any animal he assumes to conduct through a public thoroughfare.103
Don't ride with a careless driver, if you can help it, because every traveller in a conveyance is so far identified with the one who drives or directs it, that if any injury is sustained by him by collision with another vehicle or railway train through the negligence or contributory negligence of the driver, he cannot recover damages for his injuries. The passenger, in law, is considered as being in the same position as the driver of the conveyance, and is a partaker with him in his negligence, if not in his sins.104
If you have a vicious and runaway horse, and you know it, you had better sell him, or keep him at work on the farm. Don't, at any rate, use him on the road yourself, or let him to other people to use thereon; for if in your hands he should commit injuries to person or property, you would have to foot the bills; and if he should injure the person to whom you had let him, unless you had previously informed him of the character and habits of the horse, you would be liable to pay all the damages caused by the viciousness of the horse. If you should meet with an accident by reason of a defect in the highway, you could not recover anything, however severely you might be injured or damaged, provided the vicious habits of the horse contributed to the accident.105
In riding or driving keep hold of the reins, and don't let your horses get beyond your control; for if you do your chances of victory in a lawsuit will be pretty slim. If you tie up your reins for the purpose of walking in order to get warm or to lighten the load, and let your horses go uncontrolled, and they run over a child in the road and kill it or seriously injure it, you will probably have to pay more than the value of the horses, unless they are very good ones. Or if, going thus uncontrolled, they fail to use due care and good judgment in meeting other teams, and in consequence thereof damages occur, you would be expected to make everything satisfactory, because your team is required to observe "the law of the road" whether you are with it or not, especially if you turn it loose in the highway. Even if you have hold of the reins, and your horses get beyond your control by reason of fright or other cause, and afterwards you meet with an accident by reason of a defect in the highway, you cannot recover anything.106
Don't encroach upon or abuse the highway, either by crowding fences or buildings upon its limits or by using it as a storage yard. If you set a building on the line of the road, and then put the doorsteps, the eaves, and the bow-windows of the building over the line, you are liable to an indictment for maintaining a public nuisance; and possibly you may be ordered by the court to remove them forthwith at your own expense.107If you build an expensive bank-wall for a road fence, and place any part of it over the line, you must remove it upon the request of the public authorities, or else take your chances on an indictment for maintaining an illegal obstruction in the highway. If you deposit on the roadside logs, lumber, shingles, stones, or anything else which constitutes an obstruction to travel or a defect in the way, or which is calculated to frighten horses of ordinary gentleness, and allow the same to remain for an unreasonable length of time, you are liable to respond in damages for all injuries resulting therefrom. Even if the town should have to settle for the damages in the first instance, you might still be called upon to reimburse the town.108
Don't ride on the outside platform of a passenger coach; for if you cling upon a crowded stage-coach or street car, and voluntarily take a position in which your hold is necessarily precarious and uncertain, you have no right to complain of any accident that is the direct result of the danger to which you have seen fit to expose yourself. However, if the coach is stopped for you to get on and fare is taken for your ride, the fact that you are on the platform is not conclusive evidence against you; but the court will allow the jury to determine, upon all the evidence and under all the circumstances, whether you were in the exercise of due care, instructing them that the burden of proof is upon you to show that the injury resulted solely by the negligence of the proprietors of the coach.109
Don't jump off a passenger coach when it is in motion; for if you get off without doing or saying anything, or if you ring the bell and then get off before the coach is stopped, without any notice to those in charge of it, and without their knowing, or being negligent in not knowing, what you are doing, the coach proprietors are not liable for any injury you may receive through a fall occasioned by the sudden starting of the coach during your attempt to get off.110
Don't wilfully break down, injure, remove, or destroy a milestone, mile-board, or guide-post erected upon a public way, or wilfully deface or alter the inscription on any such stone or board, or extinguish a lamp, or break, destroy, or remove a lamp, lamp-post, railing, or posts erected on a street or other public place; for if you do you are liable to six months' imprisonment or a fine of fifty dollars.111
If in travelling you find the road impassable, or closed for repairs, and you find it convenient to turn aside and enter upon adjoining land in order to go on your way, don't be careless or imprudent; for if you take down more fences and do more damage than necessary, you may have to answer in damages to the owner of the land; and if you meet with an accident while thus out of the road, you cannot look to the town for any remuneration therefor, because when you go out of the limits of the way voluntarily, you go at your peril and on your own responsibility.112
Don't make the mistake of supposing that everything that frightens your horse or causes an accident in the highway is a defect for which the town is liable. If a town negligently suffers snowdrifts to remain in the road for a long time, and thereby you are prevented from passing over the road to attend to your business, or, in making an attempt to pass, your horses get into the snow and you are put to great trouble, expense, and loss of time in extricating them, you are remediless unless you receive some physical injury in your person or property; as the remedy provided by the statutes, in case of defects in the highway, does not extend to expenses or loss of time unless they are incident to such physical injury. In other words, the statute gives no one a claim for damages sustained in consequence of inability to use a road.113And so a town or city is not obliged to light the highways, and an omission to do so is not a defect in the way for which it is liable.114
Nor is the mere narrowness and crookedness of a road a defect within the meaning of the statutes. Towns and cities are only required to keep highways in suitable repair as they are located by the public authorities, and they have no right to go outside the limits defined by the location in order to make the road more safe and convenient for travel. If a highway is so narrow or crooked as to be unsafe, the proper remedy is by an application to the county commissioners to widen or straighten it.115Nor is smooth and slippery ice, in country road or city street, a defect for which a town or city is liable, if the road whereon the ice accumulates is reasonably level and well constructed. In our climate the formation of thin but slippery ice over the whole surface of the ground is frequently only the work of a few hours; and to require towns and cities to remove this immediately or at all is supposing that the legislature intended to cast upon them a duty impossible to perform, and a burden beyond their ability to carry.116
If you meet with an accident on the highway by reason of a defect therein, don't fail to give notice in writing within thirty days, to the county, town, place, or persons by law obliged to keep said highway in repair, stating the time, place, and cause of the injury or damage.117This notice is a condition precedent to the right to maintain an action for such injury or damage, and cannot be waived by the city or town.118Nothing will excuse such notice except the physical or mental incapacity of the person injured, in which case he may give the notice within ten days after such incapacity is removed, and in case of his death it may be given by his executors or administrators.119Formerly it was essential that the time, place, and cause of the injury should be set forth in the notice with considerable particularity, but now the notice is not invalid by reason of any inaccuracy in stating the time, place, and cause, if the error is not intentional and the party entitled to notice is not misled.120
Don't convey by warranty deed a piece of land over which there is a public or a private way, without conveying subject to such way; for if you do you may be called upon to make up the difference in value in the land with the incumbrance upon it and with it off, which is regarded as a just compensation for the injury resulting from such an incumbrance.121
Finally, don't keep a dog that is in the habit of running into the road and barking at passing teams. You had better get rid of him or break him of the habit. Under our statutes the owner or keeper of a dog is responsible to any person injured by him, either in person or property, double the amount of damage sustained; and after he has received notice of the bad disposition of his dog, he is liable to have the damage increased threefold.
Every dog that has the habit of barking at people on the highway is liable any day to subject his owner or keeper to large liabilities; for if he frightens a horse by leaping or barking at him in mere play, and the horse runs away, or tips over the vehicle to which he is hitched, his owner or keeper is responsible for double the damages thus caused by his dog. Hence I repeat the injunction, Get rid of such a dog or break him of the habit; and if this cannot be done, then break his neck.
Perhaps it might be well to say, in this connection, that any traveller on the road, either riding or walking peaceably, who is suddenly assaulted by a dog, whether licensed or not, may legally kill him, and thus relieve his owner or keeper of a disagreeable duty.122