The Road and the Roadside

by Burton Willis Potter

Don't encroach upon or abuse the highway, either by crowding fences or buildings upon its limits or by using it as a storage yard. If you set a building on the line of the road, and then put the doorsteps, the eaves, and the bow-windows of the building over the line, you are liable to an indictment for maintaining a public nuisance; and possibly you may be ordered by the court to remove them forthwith at your own expense.[107 ] If you build an expensive bank-wall for a road fence, and place any part of it over the line, you must remove it upon the request of the public authorities, or else take your chances on an indictment for maintaining an illegal obstruction in the highway. If you deposit on the roadside logs, lumber, shingles, stones, or anything else which constitutes an obstruction to travel or a defect in the way, or which is calculated to frighten horses of ordinary gentleness, and allow the same to remain for an unreasonable length of time, you are liable to respond in damages for all injuries resulting therefrom. Even if the town should have to settle for the damages in the first instance, you might still be called upon to reimburse the town.[108 ]

Don't ride on the outside platform of a passenger coach; for if you cling upon a crowded stage-coach or street car, and voluntarily take a position in which your hold is necessarily precarious and uncertain, you have no right to complain of any accident that is the direct result of the danger to which you have seen fit to expose yourself. However, if the coach is stopped for you to get on and fare is taken for your ride, the fact that you are on the platform is not conclusive evidence against you; but the court will allow the jury to determine, upon all the evidence and under all the circumstances, whether you were in the exercise of due care, instructing them that the burden of proof is upon you to show that the injury resulted solely by the negligence of the proprietors of the coach.[109 ]

Don't jump off a passenger coach when it is in motion; for if you get off without doing or saying anything, or if you ring the bell and then get off before the coach is stopped, without any notice to those in charge of it, and without their knowing, or being negligent in not knowing, what you are doing, the coach proprietors are not liable for any injury you may receive through a fall occasioned by the sudden starting of the coach during your attempt to get off.[110 ]

Don't wilfully break down, injure, remove, or destroy a milestone, mile-board, or guide-post erected upon a public way, or wilfully deface or alter the inscription on any such stone or board, or extinguish a lamp, or break, destroy, or remove a lamp, lamp-post, railing, or posts erected on a street or other public place; for if you do you are liable to six months' imprisonment or a fine of fifty dollars.[111 ]

If in travelling you find the road impassable, or closed for repairs, and you find it convenient to turn aside and enter upon adjoining land in order to go on your way, don't be careless or imprudent; for if you take down more fences and do more damage than necessary, you may have to answer in damages to the owner of the land; and if you meet with an accident while thus out of the road, you cannot look to the town for any remuneration therefor, because when you go out of the limits of the way voluntarily, you go at your peril and on your own responsibility.[112 ]

Don't make the mistake of supposing that everything that frightens your horse or causes an accident in the highway is a defect for which the town is liable. If a town negligently suffers snowdrifts to remain in the road for a long time, and thereby you are prevented from passing over the road to attend to your business, or, in making an attempt to pass, your horses get into the snow and you are put to great trouble, expense, and loss of time in extricating them, you are remediless unless you receive some physical injury in your person or property; as the remedy provided by the statutes, in case of defects in the highway, does not extend to expenses or loss of time unless they are incident to such physical injury. In other words, the statute gives no one a claim for damages sustained in consequence of inability to use a road.[113 ] And so a town or city is not obliged to light the highways, and an omission to do so is not a defect in the way for which it is liable.[114 ]

Nor is the mere narrowness and crookedness of a road a defect within the meaning of the statutes. Towns and cities are only required to keep highways in suitable repair as they are located by the public authorities, and they have no right to go outside the limits defined by the location in order to make the road more safe and convenient for travel. If a highway is so narrow or crooked as to be unsafe, the proper remedy is by an application to the county commissioners to widen or straighten it.[115 ] Nor is smooth and slippery ice, in country road or city street, a defect for which a town or city is liable, if the road whereon the ice accumulates is reasonably level and well constructed. In our climate the formation of thin but slippery ice over the whole surface of the ground is frequently only the work of a few hours; and to require towns and cities to remove this immediately or at all is supposing that the legislature intended to cast upon them a duty impossible to perform, and a burden beyond their ability to carry.[116 ]

If you meet with an accident on the highway by reason of a defect therein, don't fail to give notice in writing within thirty days, to the county, town, place, or persons by law obliged to keep said highway in repair, stating the time, place, and cause of the injury or damage.[117 ] This notice is a condition precedent to the right to maintain an action for such injury or damage, and cannot be waived by the city or town.[118 ] Nothing will excuse such notice except the physical or mental incapacity of the person injured, in which case he may give the notice within ten days after such incapacity is removed, and in case of his death it may be given by his executors or administrators.[119 ] Formerly it was essential that the time, place, and cause of the injury should be set forth in the notice with considerable particularity, but now the notice is not invalid by reason of any inaccuracy in stating the time, place, and cause, if the error is not intentional and the party entitled to notice is not misled.[120 ]

Don't convey by warranty deed a piece of land over which there is a public or a private way, without conveying subject to such way; for if you do you may be called upon to make up the difference in value in the land with the incumbrance upon it and with it off, which is regarded as a just compensation for the injury resulting from such an incumbrance.[121 ]

Finally, don't keep a dog that is in the habit of running into the road and barking at passing teams. You had better get rid of him or break him of the habit. Under our statutes the owner or keeper of a dog is responsible to any person injured by him, either in person or property, double the amount of damage sustained; and after he has received notice of the bad disposition of his dog, he is liable to have the damage increased threefold.