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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 530 Plank road companies are authorized, by the statute providing for their incorporation, to use the public highways of the state for the location and construction of their roads, upon obtaining the consent of certain town officers, or upon an appraisement by a jury in case the town authorities will not consent, for which use they are to pay such compensation as shall be fixed upon by the agreement or the appraisement. (Laws of 1847, 223, § 26.) The act of changing a highway into a plank road would not ordinarily require that all travel should be prohibited while the change was making, or that the company should have the exclusive right of occupation during that period. What is done in such cases is in the nature of repairing and improving the existing road, and the interruption of the ordinary travel, if any, would be more or less according to the circumstances and condition of the road in the particular case. It was not, in my opinion, contemplated that a plank road company should take possession of a highway, and exclude the public from it while their work was going on. Any inconvenience necessarily arising to the public would have to be submitted to, and it would be the duty of the company to render that inconvenience as inconsiderable as would be reasonably practicable. The expression in the 28th section of the act authorizing these companies to "take and hold" the lands which have been appraised refers, I think, to lands not before used as highways; but *Page 531 if it includes also the highways, the right to use which they have acquired, it does not give the right to an exclusive use, but only a use for the "purposes of such a road." The true rule, in my opinion, was laid down at the circuit, where the duty of the company was assimilated to that of town officers when engaged in repairing the highways.
It is unquestionably true that neither the highway officers of the towns, or the directors of plank road companies, are required to grade the whole space within the limits of the highway, so that a traveler can safely drive his carriage over every part of it. In ordinary cases, if they provide a pathway for carriages of suitable width, and so define it as that there shall be no reasonable danger of its being mistaken, they will not be in fault if a traveler chooses to try an experiment upon the part which is not thus prepared for traveling. The cases referred to from the courts in New England appear to me to lay down a reasonable rule in this respect, which I should not hesitate to adopt in a case requiring its application. (Johnson v.Whitfield, 6 Shepley, 286; Packard v. Packard, 16Pick., 191; Shepardson v. The Inhabitants of Colerain, 13Metc., 55; Rice v. The Town of Montpelier, 19 Verm., 470.) The defendant had the full benefit of this rule in that part of the charge in which the jury were told that if the company had constructed a suitable pathway, and travelers chose to turn off from it, it was at their own risk. The complaint in this case was, that the defendant had left the road in such a condition, at the place where the newly graded track diverged from the path formerly traveled, as would be likely to mislead persons of ordinary prudence and caution, and induce them to take the old and unsafe instead of the new and safe course. The jury were distinctly told that the plaintiff could not recover, unless they found such a state of facts. I do not understand it to have been denied on the argument but that the defendants *Page 532 would be liable in the case supposed, and I do not entertain any doubt as to their responsibility in such a case. Where a road is so constructed or altered as to present at one point two paths, both of which exhibit the appearance of having been used by travelers, and one of them leads to a dangerous precipice, while the other is quite safe, it is the duty of those having charge of the road to indicate, in a manner not to be mistaken by day or by night, that the unsafe path is to be avoided; and, if it cannot be otherwise done, to put up such an obstruction as will turn the traveler from the wrong track.
What I have said disposes of several of the requests for instructions to be given to the jury. I do not think they should have been charged that the plaintiff was guilty of a fault in returning from a market town in the evening. It was, no doubt, his duty to use such caution as the peculiarity of the road and the time of day required of a prudent man; and the jury were so instructed in that part of the charge in which the judge responded to the request to charge that extraordinary care was required of him. He said the defendant was bound to use reasonable care and prudence. Again, the defendants were not entitled to have the jury instructed according to the fifth proposition, without the qualification that they had not left the road in a condition to mislead travelers, and with that qualification the instruction was given in the charge; and the same remark is applicable to the sixth proposition. The observation respecting the instinct of horses in taking an old traveled road, when there had been a change in the track, does not raise any question of law, but seems to me to have been a proper comment upon the facts.
Upon the whole, the case seems to me to have been tried with legal discrimination on the part of the judge; and if the defendants have had a hard measure dealt out to them (as to which I give no opinion), it was the fault of the *Page 533 jury in determining the facts, and not of the judge in laying down the law.
The judgment should be affirmed.