Section 2672 of the General Statutes is as follows: — "The party bound to maintain any bridge or road shall erect and maintain a sufficient railing or fence on the side of such bridge, and of such parts of such road as are so made or raised above the adjoining ground as to be unsafe for travel; and whoever shall suffer damage in his person or property by reason of the want of any such railing or fence, may recover damages from such party."
"Unsafe for travel!" Where unsafe? and for whom? Manifestly for persons traveling on and along that part of the highway intended and prepared for their use; if on foot, on and along the side-walk, if there is one; if in carriages, on that part of the highway designed for carriages. The use of a side-walk by persons traveling in carriages, or of that part of a country road not worked for carriage use, would be neither legitimate nor proper. Persons attempting it have no claim to the protection of the statute. The statute was intended to protect only those who use the highway as it is ordinarily used. Hence, if in carriages they depart entirely from the carriage way, (unless allured therefrom through some fault of the town, as in Munson v. Town of Derby,37 Conn., 298,) and drive upon the side-walk, or upon the unworked portion of a country road, the statute affords them no protection. If, in so doing, they meet with defects, obstructions and dangerous pitfalls, they assume the risk. No other construction of the statute is admissible.
In this case it is found that "the defendant offered evidence to prove, and claimed to have proved, that the plaintiff's decedent, Joseph Lutton, on the night in question, in *Page 17 driving from Manchester to Vernon, began to deviate from the actual traveled path of the highway some two or three hundred feet south of where the accident took place, and that the wheel tracks of his carriage showed a zigzag course until he had driven to a point about sixty-two feet from said boarding house, and on the easterly side of said worked traveled path, and about thirty-two feet easterly of the northernmost of said trees, and that there he stopped his horse, and, although the road at that point was clear and well lighted, he backed his horse, cramping his wagon across the highway, some thirty-two feet to the row of trees, and then, between the last two trees, across the strip of land on which the row of trees were, across the side-walk about eight and a half feet, and thence the whole was precipitated down the bank into the mill-pond, where the driver and his companion, one Lawson, who was riding with him, were drowned," etc. In this connection the defendant's counsel asked the court to charge the jury that "if the jury shall find that on the night that the injury happened the plaintiff's decedent was traveling on the easterly side of the highway, until he came to a point more than thirty feet easterly from the row of trees which formed the western boundary of the highway, and then stopped his horse, and backed his horse and wagon across the road to the row of trees, and then between the trees and across the sidewalk, being about eleven feet more, and then down the bank into the pond, this fact of itself, unexplained, will justify the jury in finding that he was guilty of such contributory negligence as to defeat the right to recover in this case." The court declined to so instruct the jury.
For the purposes of this discussion it must be assumed that the facts thus claimed to have been proved, were proved. If they were, it is too plain for argument that the plaintiff's decedent was not in the legitimate and proper use of the highway. If not proved, it is equally clear that the defendant owed him no duty. He was entirely off the carriage track of the highway, and was using the unworked portion of the highway and side-walk for some unknown *Page 18 purpose of his own. Surely he was not a traveler, and was not entitled to the protection of a traveler. It is true the court was not asked to rule or charge to that extent, but was simply asked to charge that his position was such that it was primâ facie evidence of contributory negligence. I think it was that, and more too. It was not merely an evidential fact tending to prove contributory negligence, but it was a fact which, unexplained, constituted a defense. But regarding it as an evidential fact, the request was proper and should have been complied with. There was one possible explanation which was consistent with the plaintiff's right to recover; and that was, that the deceased was in that position in consequence of some neglect of the town. In the absence of that, or of some equivalent explanation, I think it is very strong and sufficient evidence of negligence.
In refusing to give the instruction requested, the court gave the jury to understand that so important a fact required no explanation, certainly not by the plaintiff; and yet it clearly recognized the fact that an explanation was necessary; for, in another part of the charge, the court, in speaking of the fact that the deceased stopped his horse and backed him between the trees across the sidewalk and down the bank into the pond, says: — "But what was the occasion for stopping at this point neither of the unfortunate victims is here to explain to us, and there is no evidence probably that can ever be obtained to explain it." Thus the matter was so left that the jury might have inferred, and probably did, that it was incumbent on the defendant to make the explanation. In this I think the court was clearly wrong, and did injustice to the defendant.
Go back with me for a moment. I said at the beginning that Lutton, at the time of the accident, was not a traveler within the meaning of the statute, and consequently was not in a position to claim its protection. I want to elaborate this idea. Suppose, instead of backing his horse from the traveled portion of the highway, he had intentionally driven his horse upon and along the side-walk, and, by some mishap, when he came to the place where the accident happened, *Page 19 he had been precipitated down the embankment and was drowned; will it be seriously contended that the town would have been liable? Does the supposed case differ from the actual one in principle? Does the manner of his coming to the place make any difference? Is it material that he came to it intentionally, instead of accidentally, so long as no negligence of the town caused him to be there? There can be but one answer to these questions. How then, and upon what principle, does liability attach in this case? It may be suggested, as the judge intimated in one part of his charge, that while traveling along the highway he stopped, and, in attempting to turn around, backed too far between the trees, etc.; or that he became confused or bewildered by reason of sudden illness. But that was not the fault or neglect of the town; it was rather the misfortune of Lutton, and no liability attached to the town. Suppose again that he had left the traveled track and driven against the trees; or in some other place had left the track and had driven upon the unworked portion of the highway, over rocks and rough places and through ditches, and so had met with an accident; will any one pretend that the town would be liable in such a case? Is the town bound to keep the entire width of the laid-out highway passable and in a safe condition? The analogy between this supposed case and the actual one is well nigh perfect. I do not see how it is possible to distinguish them in principle. If such is to be the established law of this state an intolerable and unnecessary burden is imposed upon our towns. But the law is not so.
The law as given to the jury was not adapted to the facts and circumstances, as claimed, of this case. The judge in his charge assumed that Lutton, while backing his horse over the space and across the side-walk between the carriage track and the embankment, was to be regarded as upon the same footing with ordinary travelers. While charging upon the subject of contributory negligence Lutton is repeatedly spoken of as a traveler; and not once is it suggested that when he left the traveled track and backed his horse across *Page 20 the side-walk he ceased to be a traveler; nor was there any claim that he was induced to leave the traveled path by any neglect of the town. As the court had refused to charge the jury as requested by the defendant, that leaving the path and crossing over to the pond and down the slope, unexplained, would justify the jury in finding contributory negligence, the jury must have understood that it was enough if he used due care in backing his horse, and that the propriety or impropriety of his using that portion of the highway in the manner he did was of no importance. The negligence of Lutton consisted in doing the thing itself, and not in the manner of doing it.
Again. In charging the jury as to the duty of the town and negligence on its part, the court assumed that Lutton, at the time of the accident, was using the highway as a traveler. Thus the court said: — "It is the duty of a town to keep its highways in a reasonably safe condition by night as well as by day; and a traveler proceeding along a traveled road in the night has a right to presume that the ordinarily traveled path or beatentrack is free from dangerous obstructions or pitfalls, and that sufficient railings, if necessary, or barriers, have been erected on the sides of bridges and on such parts of the way as are so raised from any cause above the adjoining ground as to be unsafe for travelers usingsuch traveled path or beaten track."
This part of the charge is meaningless and has no application to the case except upon the theory that Lutton, at the time he was backing across the side-walk, was traveling upon "such traveled path or beaten track." Obviously he was not doing so. Therefore the charge was not adapted to the facts as claimed, and was misleading. The rest of the charge was consistent with the part quoted. If Lutton at the time of the accident was not in the ordinary path, but was off from it through no fault of the town, and on a portion of it not worked or designed for the use of carriages, as was virtually conceded, he was not a, traveler, and the supposed duty of the town to erect a railing for his protection did not exist; consequently, as to him, the town could not *Page 21 have been guilty of negligence. The error consisted in assuming that he was a traveler and was entitled to protection, and that error was material as to negligence by the town and due care by Lutton. As to the latter, whatever may be said of the former, the record fairly presents the question.
I think there should be a new trial.