Baltimore & Ohio Railroad v. Boteler

Bartol, C. J., delivered the opinion of the Court: This suit was brought by the appellee to recover damages for injuries sustained by him, from an accident caused by the alleged negligence of the appellant. The ground of the action is that the Railroad Company in the construction of its bridge across the Potomac, at Harper’s Perry, had made an embankment or precipice twenty feet deep, extending from the end or abutment of the bridge along the river, so near to the highway as to be dangerous to persons approaching the bridge at night; and the plaintiff in attempting to walk upon the bridge for th-e purpose of crossing, missed his way and fell over the precipice. The accident occurred in November, 1867, at about 9 o’clock at night. The embankment is supported by a wall erected by the defendant, the top of which is on a level with the highway and the contiguous ground ; and the alleged negligence consisted in not providing railing or guards at and along the wall, a light to indicate the entrance to the bridge, or a watchman for the protection of travellers.

On the west side of the bridge next to the retaining wall, there is a highway for common travel, the entrance to which between the columns, is ten feet wide, and by ⁵⁸⁴ the side thereof, between the carriage way and the railroad tracks of the Winchester branch on the west, is a foot-way for travellers; the bridge being designed for ordinary travel in carriages and on foot, as well as for the railways ; the defendant received toll from per sods crossing, and toll was paid by the plaintiff. There is a space of ground between the highway leading to the bridge, and the retaining wall or edge of the precipice, belonging to the defendant, over which the plaintiff must have passed before he reached the place from which he fell, which according to the testimony, and as indicated on the plat used at the argument, was about ten or fifteen feet from the entrance to the bridge. It thus appears that the accident did not happen upon the highway or the bridge, but outside thereof, on the private property of the defendant, upon which it is alleged the plaintiff had no right to be, and it is contended that this fact deprives him of the right to recover ; and for this proposition we have been referred to Howard vs. Inhabitants of North Bridgewater, 16 Pick., 189 ; Rice vs. Montpelier, 19 Verm., 470 ; Farnum vs. Concord, 2 N. H., 392, and Howland vs. Vincent, 10 Met., 371. Without stopping now to consider the particular points ruled in those cases, it may be conceded as a general principle that££a traveller who without necessity diverges from the travelled path, cannot recover for injuries received while travelling outside such path." But the facts of this case do not bring it within that general principle.

It appears from the proof that the whole surface of the ground about the highway, up to the entrance to the bridge, and out to the edge of the retaining Avail or verge of the precipice was levelled off smooth; there was nothing to indicate the location or line of the highway, or to distinguish it from the contiguous ground on the west side, and a deviation of a few steps in that direction precipitated the plaintiff over the wall. ⁵⁸⁵ Under such circumstances we hold the law to be clear, both upon reason and authority, that the accidental deviation from the highway such as occurred in this instance, does not necessarily deprive the plaintiff of the right of action. The law imposed the duty upon the defendant in constructing its bridge, and making the lateral embankment adjoining the highway ; so to construct them as not to render the approach to the bridge along the highway dangerous for passengers by day or night; and a failure to perform this duty subjects it to liability for the consequences ; provided the party thereby injured has used reasonable and ordinary care to avoid the danger. This proposition is supported by Barnes vs. Ward 67 Eng. C. L. R., 392, and was affirmed by the Court of Exchequer in Hardcastle vs. S. Y. R. Way, 4 Hurl. & Nor., 67.

The same principle was decided in Coggswell vs. Inhabitants of Lexington, 4 Cush., 307 ; Norris vs. Litchfield, 35 N. H., 271 ; Davis vs Hill, 41 N. H , 329 ; Vale vs. Bliss, 50 Barb., 358 , and Alger vs. City of Lowell, 3 Allen, 402 . In the case last cited, the Court say, “the true test is not