Lawrence v. Inhabitants of Mt. Vernon , 35 Me. 100 ( 1852 )

Appleton, J.

— The existence of the road in traveling over which the accident which is the subject of this suit, occurred, was proved by user alone, and whether that user extended beyond the actual travel, was a material fact upon the determination of which the rights of the parties might depend. The jury might find the user coextensive only with the actual travel, and if so, the alleged cause of the injury would not be within the road, as found by them. They might, upon the evidence, have deemed the road to extend beyond the traveled path so as to include the shingles, which the plaintiffs claimed to have been the cause of the injury, within its limits. The boundaries of the road as established by user were to be determined by them, and that issue should have been distinctly presented.

It is well settled that for any defect, however slight, the town is responsible, if damage occurs in consequence thereof without fault or negligence on the part of the person injured. But what is a defect and whether any defect however slight exists, is to be submitted to the jury. The Jaw has not prescribed what imperfections in a road would constitute the defect referred to in the statute ; it was a fact for the jury to settle, what condition would render it safe or otherwise.” Merrill v. Hampden, 26 Maine, 234. So too, the question of ordinary care on the part of the person driving must depend upon the facts as they may be developed in each case, and is one entirely for the determination of the jury. In Bigelow v. Rutland, 4 Cush. 247, instructions respecting ordinary care, precisely like those given in this case in reference to defects in the road, were requested by counsel and refused by the Court, and such refusal was held in accordance with the law. The instruction, as given, withdrew the question as to whether there was a defect or not from the jury, and the Court determined absolutely, as matter of law, what should be considered as a defect. The Court should have left that question to the tribunal, to whom its decision exclusivély belongs. Morton v. Fairbanks, 11 Pick. 368; Percival v. Maine Mutual Ins. Co. 33 Maine, 242.

Exceptions sustained. New trial granted.

Shepley, C. J., and Tenney, Howard and Rice, J. J., concurred.