The opinion of the court was delivered by
Royoje, Oh. J.The declaration alleges that the female plaintiff sustained the injury complained of in consequence of the defective condition of a street crossing which had been constructed by the village; that it was the duty of the village to keep and maintain said crossing in good and sufficient repair; and that at the time she was injured it was not in such a state of repair. There wás a general demurrer to this declaration; and thus the question was raised as to the legal obligation of the village to keep and maintain said crossing in such repair as would protect travellers from injury while passing over it. The act incorporating the village of Rutland constituted the territory to be included within the limits of said village a highway district of the town of Rutland ; and provided that the highway taxes to be *227assessed upon the grand list of said village should be paid in money to the treasurer of the village, and should be expended in building, constructing, maintaining and repairing the streets, highways, walks, alleys and lanes of said village. It also provided that the trustees of the village might lay out, alter, maintain, and discontinue any street, road, lane, alley or walk in said village. The right was also given at any annual meeting or special meeting called for that purpose, to lay a tax upon the grand list of the village for any purposes named in the charter. These are all the provisions embraced in the charter that it is important to notice as affecting the question under consideration. The town of Rutland is not shown to have surrendered its right of supervision and control over the highways in said district, or been released from its statutory obligation to keep them in suitable and proper repair. The duty of keeping the highways and crossings in the village in repair was not imposed upon the village by the charter.
It is claimed that the duty was legally imposed by the acceptance of the charter ; but we do not think any such effect can be given by the act of acceptance. To give it that effect would be to create a legal obligation where none existed before. The acceptance of the charter conferred the right upon the village to take the supervision of the highways and crossings in the village and see that they are kept in repair, and enabled them to raise money for that purpose. But it was not made compulsory upon them to do so. In the exercise of those rights, they were acting in subordination to the superior rights of the town. All that the village has done in the construction and repairment of highways and crossings has been as volunteers, and not in the performance of a legal duty. The duty that municipalities owe to travellers in the matter of keeping highways in such a -state of repair as to protect them against injury is statutory, and unless the duty is imposed by statute no recovery can be had by a traveller who has sustained injury in consequence of the want of such repair. No such duty rested upon the village of Rutland, and the judgment sustaining the demurrer and adjuding the declaration insufficient is therefore affirmed.