The plaintiff's right of recovery was, in pleading and proof, based upon the theory and claim that this highway was defective and unsafe to transport, with reasonable safety, the plaintiff's property as it was being transported along this highway upon the day in question. This, the plaintiff claimed, was a question of fact for the jury. Upon the other hand, the defendant contended that, as a matter of law, the town was not obliged to maintain a retaining wall in such shape that it could not be crushed down when it was subjected to the enormous strain caused by such a machine as the one in question, and that such a use of the retaining wall could not be foreseen by any town, and could not be contemplated as reasonable, and that the town was not legally bound to guard against it. *Page 547 This proposition was presented to the court below by the defendant in its requests to charge, and in the argument of the case before this court.
The court below entertained a different view upon this branch of the case. It charged the jury fully and at length as to the burden imposed upon towns in the maintenance of their highways. In this connection the jury were informed, in part, that "the inquiry in each case, as in this one, is, under all the circumstances surrounding the accident was this highway in a reasonably safe condition for public travel and traffic?"
The trial court was correct in its statement of this general proposition and justified in refusing to charge as requested upon this point. We have no statutory provision that a town shall not be liable for defects in the highway where the weight or bulk of the property transported over the highway exceeds certain tonnage or dimensions. There is nothing in the present case which changes the rule of law that towns shall exercise reasonable and ordinary care in the maintenance of their highways. Masters v. Warren, 27 Conn. 293,300. There was a direct conflict in the testimony as to the weight of this machine, and as to the manner in which it was being driven over this highway. Under this conflicting evidence the court could not properly instruct the jury that the weight of this machine was so great that the law imposed no duty on the defendant town to provide a road reasonably calculated to provide for the safe passage of the plaintiff's property. The finding shows that the trial court fairly and exhaustively presented the claims of the parties as to the weight of the machine and its bearing upon the issues in the case. In concluding his remarks upon this subject the jury were properly informed that, "of course, if you should find upon all the evidence that there was such an excessive weight to this structure or such *Page 548 peculiar features in its construction that made it dangerous to pass over a highway designed to furnish the traffic which this highway ought reasonably to be expected to serve, then of course the plaintiff would have taken the risk and hazard of attempting to transport this machine over such a highway having such a weight or such qualities or such characteristics. If, on the other hand, gentlemen, you find that this machine was not of such extraordinary weight as to make it dangerous to transport it over a highway of this description, designed and existing for the service of the communities which it served to connect as an avenue of communication, and if you find that it was not, in other words, of such unusual or extraordinary weight as would impose upon the plaintiff the risk of its safe transportation, why of course you then come to what I really believe, and what I think probably the counsel have emphasized, as the great controlling question in the case; was the plaintiff or his driver, and the others who were assisting in the transporting of the machine over the highway in question, in the exercise of due and reasonable and proper care?"
The reasons of appeal also impute error in the instruction of the court as to the degree of care which the plaintiff was bound to exercise in passing over this portion of the highway. To sustain its contention upon this point, the defendant has selected certain extracts from the charge, a part of which read as follows: "Now, there has been evidence, and I will not review it, offered by the defendant, tending to show the defendant's claim that he drove entirely out of the traveled tracks of this highway, and that the wheels of this vehicle passed on to that portion of the highway which was in fact the upper surface of the wall itself, with such dirt, as, of more or less amount, spread over it. I think the evidence all would tend to show that there was no gutter *Page 549 on the right-hand side of the traveled track between the traveled track and the wall, in other words, the smooth or level surface of the road extended over and included the top of the wall; such would seem to be the evidence, the undisputed evidence, from both sides. Now, approaching that section of the road in that condition, knowing as he did know or should have known, that he was riding upon a vehicle of unusual construction and considerable weight, was he in the exercise of that due care and prudence which you would expect of a careful and prudent man in passing over the place in question? If he was simply passing over what you find, from all of the testimony, was obviously and should have been, a safe and proper part of the surface of the road to travel over, and the wall gave way and precipitated the machine down this bank, then it was the defect of the wall, and not any carelessness on the part of the driver of the machine unless indeed he was attempting to drive a machine heavier than he ought to have driven over that or any other similar highway."
There is nothing in the finding to show that the defendant controverted the plaintiff's claim that the highway at this point was supported in part by a stone retaining wall, the top of which was more or less covered with dirt and was substantially level with and formed a part of the roadbed at the place where the accident occurred, and that the distance from the western wheel rut to the railing was about five feet. In view of this, that portion of the charge which we have just noticed is not open to the criticism that the court, by these remarks, left the jury to conclude that the absence of a separating gutter permitted the plaintiff's driver to pass at will out on to the top of the supporting wall with a well-digging machine of an estimated weight of from three to six tons. Nor can it be said that these remarks, taken as a whole, misled the jury by giving them the *Page 550 impression that these statements embraced facts actually proven. It is reasonable to infer that the jury must have understood these expressions to refer to the claims of the plaintiff upon this branch of the case. It is almost unnecessary to state that the law is well settled that a highway may become defective outside of the limits of the wheel tracks or traveled path. Applying this principle to the situation here presented, it is obvious that these remarks were not erroneous.
The defendant, in argument, contended that the court failed to instruct the jury that due care upon the part of the plaintiff's driver, under the extraordinary conditions attending the accident, might require him to use extraordinary care and such prudence as was commensurate with the condition involved at the time the plaintiff's property was injured. A sufficient answer to this claim is that it appears that no such question is raised by the defendant in its assignments of error.
For the same reason it can be stated that we have no occasion to consider the defendant's claim that the court erred in failing to instruct the jury "as to the object and purpose of a retaining wall, its relationship to the highway, or what it means by the expression `highway.'" The finding shows that the jury were fully and fairly instructed as to the degree of care resting upon the plaintiff. It would have been incorrect for the court to have said to the jury, as requested by the defendant, that "if the jury find by a preponderance of the evidence that the driver of the machine pulled out of the road, at the place of the accident, so that the wheels were out of the traveled path and rested on the wall; and further so find that the wall was defective and gave way, but would not have given way had not the driver pulled out to the right so that the wheels got out of the traveled path and on the wall; and if they *Page 551 further find that the wall would not have given way, and the accident would not have happened, had the driver not so pulled out to the right so that the wheel or wheels got out of the traveled path of the road and on the wall, then the verdict should be for the defendant." Such an instruction would have given the jury to understand that they were obliged to take the traveled path at this place as the westerly line of this highway, and that the town could not be made liable for a defect upon this highway at this place, if it appeared that the driver pulled out to the right so that the wheels got out of the traveled path and on the wall. Such a construction of the defendant's liability would have been too limited. "Travelers may be obliged, by reason of events naturally incident to travel, to pass from the wrought to the unwrought part of the highway; and a highway so constructed that such exceptional departure from the traveled track must involve unnecessary and serious danger may be defective within the meaning of the statute." Seidel v. Woodbury,81 Conn. 65, 69, 70 A. 58.
There is no error.
In this opinion the other judges concurred.