Opdycke v. Public Service Ry. Co.

78 N. J. L.

man was present at the time, but plaintiff appears to have personally attended to the arrangements with the livery stablemen. He testified that they at first offered him a wagon having no lights, which he rejected; they then offered him another, which had a short piece broken from the end of one shaft, but they said this did not interfere with its efficiency; this wagon likewise he declined to take, telling the men that he wanted a perfectly safe vehicle. At this juncture he returned to the house where Mrs. Opdycke awaited him, leaving the coachman at the stable to bring the horse and carriage when made ready. The coachman followed him soon afterwards, driving the horse, and, attached to it, a wagon procured from the livery stable, which in fact had a piece five to eight inches in length broken from the end of one of the shafts. According to the plaintiff's testimony, as we understand it, he did not know that the wagon furnished to him was thus broken until after the runaway. The coachman testified that he knew before he took the horse and wagon from the livery stable that the hired carriage had a shaft from the end of which a piece was broken, but that he observed at the same time that six inches of the shaft still projected from the tug. When the coachman brought the horse and the hired vehicle to the door of the house where Mr. and Mrs. Opdycke were waiting, the horse appeared so restive that Opdycke's attention was attracted, and he discovered that the shaft had dropped from the tug. By his direction the coachman at once drove back to the livery stable, Opdycke himself hurrying there on foot. He called the stablemen and directed one of them to take hold of the horse's head while the coachman should get out and correct the difficulty. One of the stablemen accordingly took the horse's head, the coachman got out, and he with the aid of the other stablemen was endeavoring to right matters, and at this juncture the horse reared slightly, broke loose from the man who was holding him, and ran away towards home, with the result already mentioned.

Of course, if the plaintiff did not knowingly accept the carriage with the broken shaft (and so we interpret his testimony, which is the only evidence upon the subject), he is not per

49 Vroom.

Opdycke v. Public Service Ry. Co.

sonally chargeable with negligence in this regard. It is insisted by counsel for defendant that plaintiff's testimony, properly interpreted, shows that he did accept the carriage in question, knowing that it had a broken shaft. We are not to be understood as either deciding or conceding that if plaintiff had such knowledge, it would necessarily follow from this that he should have been nonsuited for contributory negligence. It would be necessary to consider, under all the circumstances (some of which we are passing without mention), whether the plaintiff was indisputably lacking in the care that a reasonably prudent man would have exercised, and if so, then whether his want of care beyond dispute contributed to the runaway.

It is further argued that plaintiff's coachman (who admittedly did know the shaft was broken before the horse was attached to the livery carriage) was guilty of negligence, and that such negligence is attributable to the plaintiff on the doctrine "respondeat superior." But, as already mentioned, the coachman observed that, although a piece was missing from the end of the shaft, the shaft still projected six inches beyond the tug, and besides, he seems to have been present when the stablemen assured Mr. Opdycke that the broken shaft did not interfere with the wagon's efficiency. Whether the acceptance of the wagon under these circumstances constituted negligence on the coachman's part is not so free from doubt as to be decided by the court as matter of law. Moreover, it is by no means certain that the plaintiff was chargeable with the consequences of the coachman's conduct in this regard. There is no clear evidence of express authority given at the time by Mr. Opdycke to the man with respect to the selection or acceptance of a wagon at the livery stable, nor is there anything to show that the performance of such a function was within the scope of his general employment. It would seem that such authority as the coachman possessed, if any, arose for that occasion only, and merely by implication from the circumstances and the conduct of the parties at the time. The question of the existence and extent of such au

Opdycke v. Public Service Ry. Co.

78 N. J. L.

thority certainly could not be determined against the plaintiff without submission to a jury.

From all of which it results that the nonsuit cannot be sustained upon the ground of contributory negligence.

The other ground upon which the decision below was rested is that no negligence or breach of duty on the part of the defendant was shown with respect to the construction or maintenance of the bridge in question, either (a) because the bridge was not within the legal limits of the highway, or (b) because it was outside of the traveled way and not in its nature a nuisance.

It appears that the runaway horse, following the direct route towards plaintiff's home, proceeded along a public highway formerly known as the Easton turnpike, which at a point between Bound Brook and Somerville crosses a stream known as the Middle brook. In and along the same highway the defendant company maintains a street railway line. To the eastward and also to the westward of Middle brook the tracks run alongside the traveled part of the highway and are ballasted with cracked stone. The tracks are substantially of the same level with the adjacent surface. Upon approaching the brook the tracks diverge from the wagonway and are carried over the brook by a separate bridge. The wagon bridge is about twenty feet wide. Parallel to it, and separated from it by a few feet, is the bridge maintained by the defendant company. This has a width of about twelve feet, and is of approximately the same level as the wagon bridge. As already noted, it is not at all designed for use by horses or horsedrawn vehicles. On the contrary, its construction resembles that of a steam railway bridge; the rails rest upon cross-ties ten feet in length and spaced about nine inches apart (eighteen inches between centres); there are no flooring planks. It is readily inferable that a bridge so designed and constructed is not merely unsuited to ordinary travel, but highly dangerous to it, and that a hoofed animal attempting to cross upon it could hardly fail to be injured. There was no fence or railing to confine travel to the wagon bridge, and the whole situation was such that the jury might reasonably infer that

49 Vroom.

Opaycke v. Public Service Ry. Co.

an uncontrolled animal going in the dark along the highway, especially if in a state of excitement, might as probably enter upon the trolley bridge as upon the wagon bridge.

The highway in question was laid out in the year 1807 as the "New Jersey Turnpike Road." See Pamph. L. 1806. p. 586. According to the evidence, its width, at the place in question, is four rods, or sixty-six feet. It appears that in the year 1870 the turnpike company made a deed or deeds purporting to convey the road (or at least this portion of it) to the inhabitants of the township or to the inhabitants of the county through which it extended. These deeds were introduced in evidence, apparently for the purpose of showing a surrender, by the turnpike company to the public, of the care of the road and the franchise of taking tolls upon it. The deeds have not been printed with the case as submitted to us; but for present purposes this is of no consequence. It is admitted that the road was a public highway; and, this being so, it makes no difference whether it was a toll road or a free road; in either case the right of a member of the general public as against one maintaining within its limits a nuisance or unauthorized structure would be the same. Wright v. Carter, 3 Dutcher 76, 81 (reversed on error, but upon another point; see 5 Vroom 207, 208); State, Parker, Prosecutor, v. City of New Brunswick, 3 Id. 548, 551; affirming, S. C., 1 Id. 395, and citing with approval Com. v. Wilkinson, 16 Pick. 175. See, also, Borough of Chambersburg v. Manko, 10 Vroom 496.

According to the evidence, the railway bridge is well within the limits of the highway width of sixty-six feet. Admittedly it is maintained by the defendant company. It appears to have been built by defendant's predecessor in title, in order to accommodate a line of railroad constructed pursuant to an ordinance adopted by the municipal authorities giving consent for the construction and maintenance of a street railway "driven by electricity from overhead wires suspended on poles, and commonly called the overhead or trolley system, in, over and upon certain streets, roads, highways and public places," &c.

It will be convenient to consider-first, how the case would

Opdycke v. Public Service Ry. Co.

78 N. J. L.

stand if no consent had been given in behalf of the public for the construction and maintenance of the railway bridge at the place in question; and secondly, what is the scope and effect of the municipal consent that was given.

It is argued that although the bridge in question was located within the limits of the highway as laid out, yet because ordinary travel was carried over Middle brook by the wagon bridge, and because the space at the side of this bridge was a sort of ravine, approximately twelve feet in depth, and, from the steepness of its sides and the existence of the brook at the bottom, unavailable for passage by ordinary vehicles, therefore this space was not a part of the highway in fact, and it was lawful for the defendant company to place there a bridge designed for its own purposes exclusively, not only unsuited for use by horses and carriages, but dangerous when used by them.

To this argument we cannot give our assent. When a public highway is laid out of a certain width-as in this instance of the width of sixty-six feet-that entire space becomes devoted to public use for all purposes of a highway. True, the abutting owner ordinarily retains the ownership of the fee, and may use it for purposes not inconsistent with the public travel. So, also, it by no means follows that the turnpike company or the public authorities are required to grade and work every portion of the highway's width, or obliged to remove all obstructions or to furnish bridges and culverts extending to the entire width, in such manner that the whole may be suitable for purposes of ordinary travel. We are not here concerned with any such question, but solely with the extent of the public easement of passage. The width of the wagonway, or of the bridge, bears upon the question whether the highway is more or less adapted to the comfortable accommodation of the traffic upon it; but these conveniences do not limit the public rights of passage. It is a matter of common knowledge that where a highway crosses a stream and a bridge of lesser width is thrown across, people upon horseback and in vehicles may at times prefer the ford to the bridge; driven cattle may likewise prefer it; at all events. the whole road is open to the public as a way.