And in a more recent case,2 a canal and railway company, as early as the 28 Geo. 2, had acquired the right, by act of parliament, to construct a canal and take tolls thereon, and had built the same across an ancient highway near St. Helens, a small village, and had made a swivel bridge across the canal for the passage of the highway; and by subsequent acts, reciting the *existence of such works, all persons were to have free liberty with boats to navigate the canal for the transportation of goods, and penalties were imposed upon such persons as should leave open the drawbridges. The company maintained the works and received a toll from all others using them. A boatman having opened the swivel bridge, to allow his boat to pass through, in the night-time, a person walking along the road fell into the canal and was drowned, just as the boat was coming up. When the bridge was open the highway was wholly unfenced. Two lamps had formerly been kept burning, of which one had been removed and the other was out of repair at the time. The jury found that the deceased was drowned by reason of the neglect of reasonable precautions on the part of the canal company, without any fault on his own part. Held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be for a nuisance arising therefrom. That the bridge being in the possession of defendants, the action was properly brought against them and not against the boatman. That the passing the subsequent acts, recognizing the existence of the bridge, was not a legislative declaration of its sufficiency. It was further held, that even if the bridge had been sufficient at the time of its erection, it was the duty of the company so to alter and improve its structure, from time to time, as at all times to maintain a bridge sufficient, with reference to the existing state of circumstances, and that the jury were warranted in considering the bridge, in the state in which it was, insufficient. 2. But it has been held, that where such companies, having the power, by law, to cut through and alter highways, either temporarily or permanently, do it in such a manner as to leave them unsafe for travellers, who in consequence sustain injury without fault on their part, that the towns or cities in which 2 Manley v. The St. Helens Canal & Railw. Co., 2 H. & N. 840. such highways or public streets are situated are primarily liable for all such injuries. *3. And it is also true that such towns or cities may claim an indemnity against the railway companies who are first in fault, and in such action recover not only the damages but the costs paid by them, and which were incurred in the reasonable and necessary defence of actions brought against them on account of the defects in such company's works. 3 Willard v. Newbury, 22 Vt. 458; Batty v. Duxbury, 24 Vt. 155; Currier v. Lowell, 16 Pick. 170; Buffalo v. Holloway, 14 Barb. 101. In this last case an opinion is intimated, that a contractor for such works is not liable to make such precautionary erections as may be requisite to guard the public against injury, no such provision being found in his contract. But is not that a duty which every one owes the public in all works which he undertakes? In Barber v. Essex, 27 Vt. 62, the following points are decided: An old highway, which a railway proposes to use for its track, is not considered as discontinued till the company have provided a substitute, or unless effected by some other definite legal act, or by an abandonment by legal authority, or nonuser. Towns are responsible to the public for the safe condition of their highways, and cannot excuse themselves from the performance of the duty by showing that a railway company, proceeding under their charter, had caused the defects complained of. The towns are bound to watchfulness upon this subject, and theirs being a primary responsibility, they cannot shift it upon the railway, whose responsibility is secondary in regard to travellers and the public generally. The towns have their remedy over against the company. See, also, to same effect, Phillips v. Veazie, 40 Maine, 96. The obligation upon the towns to make highways safe and convenient for travellers continues when they are crossed by railways at grade, except so far as the necessary use of the crossing by the railway may prevent it, and subject to such specific directions as may be given by the county commissioners. Davis v. Leominster, 1 Allen, 182. But towns are not liable for obstructions caused by telegraph poles which they have no right to remove. Young v. Yarmouth, 9 Gray, 386. The railway is also responsible for all unlawful obstructions of the highway. Parker v. Boston & Maine Railw. Co., 3 Cush. 107. But where the duty of maintaining a bridge is imposed exclusively upon the railway, the town is not responsible for any defects in the same. Sawyer v. Northfield, 7 Cush. 490. See, also, Jones v. Waltham, 4 Cush. 299; Vinal v. Dorchester, 7 Gray, 421. 4 Lowell v. Boston & Lowell Railw., 23 Pick. 24; Newbury v. Conn. & Pas. Rivers Railw., 25 Vt. 377. The recovery in these cases is allowed upon the ground, that the wrong is altogether upon the part of the company, and the town, standing primarily liable to the public for the sufficiency of the highways, and being virtual guarantors against the negligence of the railway company, may therefore recover of them an indemnity, not only for the damages they are compelled to pay, but also the costs and expenses incurred by them in defending bona fide against suits brought against them for the default of the company. And where the injury did not accrue for more than six years, it was held that the railway was still liable to indemnify the town, notwithstanding the bar of the statute of limitations, reckoning the cause of action as accruing at the date of the neglect ; and that it did not exonerate the company guilty of the neglect, that they had leased their road to another company who were operating it at the time the injury occurred.5 4. And where the statute provides that railways "shall maintain and keep in repair all bridges, with their abutments, which they shall construct for the purpose of enabling their road to pass over or under any road, canal, highway, or other way," and the company omitted to perform the duty in the manner required for the public safety, it was held that the town, within which the road lay, were liable to indictment for not keeping it in safe repair, and that they may compel the railway company to make all such repairs as may be necessary, by writ of mandamus; or if they have been obliged to make expenditures therein, may reimburse themselves by an action on the case against the company. 5. And where a railway company were authorized by the legislature to construct and operate their road through the streets of a city, and the city government have assented to the location and construction upon a designated route, on certain conditions, it was held that the municipal authority had no power by resolution to annul or impair the grant to the company on account of its failure to complete the road within the time limited in the conditions annexed to their assent. And that such condition was not to be regarded as precedent to the vesting of the estate or franchise, but only a condition subsequent upon the non-performance of which the grantor might elect to defeat it, but that nothing short of a judicial determination would operate to divest the interest of the company.7 Duxbury v. Vt. C. Railw., 26 Vt. 751, 752, 753; Hayden v. Cabot, 17 Mass. 168; Hamden v. New Hav. & Northamp. Co., 27 Conn. 158. 5 Hamden v. New H. & North. Co. & N. Y. & N. H. Railw., 27 Conn. 158. But where the company have the right to lay their rails in the street, they are not responsible for any injury resulting therefrom to others, unless they have been in fault either in laying them down or in keeping them safe. Mazetti v. New York & Harlem Railw., 3 E. D. Smith, 98; post, § 225, pl. 7. State v. Gorham, 37 Maine, 451. 7 Brooklyn Central Railw. v. Brooklyn City Railw., 32 Barb. 358. * 6. Where a railway has been laid upon a public street, it does. not thereby become public property, in such a sense as to entitle the public at large or other railway companies to use the track for the passage of carriages constructed for such use. Nor will the permission of the municipal authorities for that purpose give any such right.7 7. Where a railway company is required to construct its road so as not to obstruct the safe and convenient use of the highway, this is a continuing obligation requiring the company to so maintain their road as to leave the highway safe and convenient for public use; but this will not exonerate the towns from their primary responsibility.8 8. Cities or towns are not liable for damages resulting from the proper exercise of authority in permitting railway tracks to be laid in the streets, or in raising the grade of streets, unless they exceed their lawful authority in this respect. And it is here said to be a legitimate use of a street to allow a railway track to be laid in it. 9. Where a canal company had constructed a bridge as part of the farm accommodations of an adjoining land-owner which the company were bound to maintain, and a railway company by subsequent legislative grant had laid its track along the line of the canal, and in consequence had been compelled to alter the construction of the bridge so as to render it more expensive to maintain the same, it was held the canal company were not thereby exonerated from maintaining the bridge, but were liable to the land-owner the same as before the alteration by the railway company, notwithstanding any liability which might rest upon the railway company.10 10. Where a railway crossed on a level a considerably frequented footpath, and there was no servant of the company at the crossing to warn persons of the approach of the trains, the view being somewhat obstructed by the pier of the bridge, but a person before reaching the track could see nearly three hundred yards either way along the line, and the plaintiff's wife, while crossing the line at the spot was run over and killed, it was held that the fact of the company not keeping a servant at the crossing to warn 8 Wellcome v. Leeds, 51 Me. 313. 9 Murphy v. City of Chicago, 29 Ill. 279. 10 Ammermon v. Wyoming Land Co., 40 Penn St. 256. persons of the approach of trains, was not evidence of negligence to go to the jury.11 *11. And where it was made, by statute, the duty of a railway company to maintain gates at all level crossings of highways, and to have persons to open and shut them when any one wished to pass, but at all other times they were to be kept shut, and a person coming along the highway when no servant of the company was present, as he should have been, to open and shut the gates, the plaintiff having waited a reasonable time opened the gates himself in order that he might be able to proceed on his journey, and in doing so was injured by the closing of the gates, which were so constructed as to fall back into their places with their own weight, it was held the action would not lic, one judge dissenting.12 This case was decided mainly upon the ground that by the act of parliament requiring the gates to be kept closed, except when opened by the servants of the company, it amounted to a virtual prohibition of any one crossing the railway at any other time, and if the plaintiff found no servant of the company to open the gate, it was his duty to wait until he could find one, and seek his remedy for the delay against the company; and being a wrong-doer in opening the gate, he could not recover of the company for any injury he thereby sustained. SECTION V. Liability for Injury in the Nature of Torts. 1. Railway crossings upon a level always dangerous. 2. Company not excused by use of the signals required by statute. 3. Party cannot recover if his own act contributed to injury. 4. But company liable still if they might have avoided the injury. 5. If company omit proper signals, not liable, unless that produce the injury. 6. Not liable for injury to cattle trespassing, unless guilty of wilful wrong. 7. General definitions of company's duty. 8. Action accrues from the accruing of the injury. 9. Where injury is wanton, jury may give exemplary damages. 10. One who follows direction of gate-keeper excused. 11. Company responsible for injury at a crossing opened by themselves for public use. 12. The responsibility of railway companies for damages to persons crossing, mainly matter of fact, and each case depends on its peculiar circumstances. § 133. 1. We have discussed the subject of this chapter, in "Stapley v. London, Brighton, &c., Railw. Co., Law Rep. 1 Exch. 21; s. c. 11 Jur. N. S. 954. 12 Wyatt v. Great Western Railw. Co., 6 B. & S. 709; s. c. 11 Jur. N. S. 825. |