Dissenting Opinion, by
Tenney, C. J.The presiding Judge was requested to instruct the jury, that the city is not liable for obstructions in the streets and on the bridges, caused by teams loaded with trees for the market, and under the care of the drivers or owners of the teams. This instruction was not given, further than the same may be embraced in the general instructions. The jury were instructed, that if the city government author, ized persons with their teams and wagons, to occupy a portion of such street or bridge, and make it a customary stand, day after day, during the season of their business, for trade with their customers, and it was by them so continuously occupied, or if it was occupied by them without express authority from the city government, but with their knowledge, and without any objection on their part, or interference therein, and the jury believe from the evidence, that the city assented to such use and occupation — that it would be for the jury from the evidence to determine, whether or not such occupation of the street or bridge, was an obstruction, which would render it unsafe for travelers, and constitute a defect therein which would render the city liable for injuries and damages occasioned thereby.
*538The sum of this instruction, in connection with the refusal to give that first requested is, that the city is liable, for any injury caused by an obstruction in a street or upon a bridge, where the obstruction is produced by the occupation of parts thereof by teams and wagons in charge of their respective owners, day after day as a customary stand for business, the city having reasonable notice thereof. Is this the true construction of R. S., c. 25, § 89, which creates a liability for any bodily injury, &c., through any defect in any highway, townway, causeway or bridge, &c. ?
It is well settled, that a stick of timber, or other obstruction, left in the highway, rendering the same wanting in safety and convenience for travelers, and by reason of the same, a traveler in the use of ordinary care receives an injury, is such a defect in the way, as to make liable the party, bound to keep the same in repair and having reasonable notice thereof, to the person receiving the injury. Springer v. Bowdoinham, 7 Greenl. 442; Johnson v. Whitefield, 18 Maine, 286; Bigelow v. Weston, 3 Pick. 267.
Highways are specially designed for the use of travelers; while they are used as such, no liability is incurred by a town, county or person bound to keep them in repair, for an injury received, by the interference of one traveler with another, notwithstanding one of them may be so regardless of his duty, as to cause the injury to his fellow traveler by an obstruction of the way. But if the street is suffered to be partially filled with wagons, to remain stationary, that their owners, being present, may make sale of articles contained therein to customers, so that they constitute an impediment to the ordinary travel, it is difficult to perceive a reasonable ground of distinction, in the fact, that the owners have not left their wagons; or that the cattle or horses, which brought them to the stand, remain attached or near. The case does not differ from that where booths are erected in the street or upon a bridge in a city for the purpose of selling fruit or other articles, by the authority of the city, or with the knowledge of its officers, which erection is an essential ob*539struction to the travel. Can it be insisted, that an injury to a traveler through such erection, would not render the city as liable as it would be, if a stone or a log had caused it ? The liability of the city being fixed, if the obstruction was a stick of timber, left in the street, apparently in the possession of no one, can it be exonerated, if the owner was sitting upon it, after it was placed in the street, attempting to make sale of the same ? If the city is relieved from liability in the latter case supposed, and not in the former, it is upon a ground, which affords no security to the careful traveler.