Perkins v. Inhabitants of Fayette.

the outside of the ditch and about two feet from the wrought part, which at this point was in good condition. The defendants claimed, and introduced evidence tending to show, that the rock was naturally there. The plaintiff was riding in a single horse wagon with her son, who was driving, and after passing several rods beyond the rock, some cows with boards on their horns came to the top of a hill from an opposite direction, when the horse became suddenly frightened and attempted to turn about in the road. The driver jumped from the wagon, and seizing the rein near the bit, prevented the horse from turning short about, but could not control him. The horse turned out of the wrought part on to the side, between the ditch and the fence, and after going some four or five rods, in returning into the wrought part of the road, the driver still holding by the rein, one of the forward wheels struck the rock, by which the wagon was upset and the plaintiff thrown out and severely hurt.

The plaintiff's counsel after the charge requested the following instructions:

"If the plaintiff's horse was uncontrollable and was running, without any fault of the driver, and not in consequence of any deficiency of the carriage or harness, or any vicious habits of the horse, and the highway was defective, the town having notice of the defect, and the injury resulted from such defect, the defendants would be liable."

"Public rights of travel are not restricted to the prepared and usually travelled path, but citizens have a right to travel over the whole width of the way as laid out, without being subjected to other or greater dangers than may be presented by natural obstacles, or those necessarily occasioned by making and repairing the travelled path."

'Stones, timbers or other obstacles unnecessarily placed within the limits of the road, outside of the travelled path, are as unlawfully there as they would be in the travelled path."

The requested instructions were refused, the presiding justice having covered the points by contrary instructions, or such as were less favorable to the plaintiff. The instructions specially objected to in the argument appear in the opinion. The verdict was for the defendants; and the plaintiff alleged exceptions.

E. O. Bean, for plaintiff, asked. the court to review the decision in Moulton v. Sanford, 51 Me. 127.

Perkins v. Inhabitants of Fayette.

D. C. Robinson, for defendants.

PETERS, J. A question arose at the trial as to what extent towns were responsible for injuries to travellers, occasioned by their teams coming in collision with obstructions on the side of the road beyond the travelled way. The judge instructed the jury that towns were not required to render the road passable for the entire width of the whole located limits, and that the duty of the town was accomplished by making a sufficient width of the road in a smooth condition so that it would be safe and convenient for travellers. He also directed the jury that the town had the right, in making or repairing a road, to remove stones and stumps on to the sides of the way and leave natural obstructions there, provided the same were situated so far from the travelled track that persons passing over the road with teams might pass without danger of coming in collision with them. We think it would be utterly impossible for towns, as a general rule, to do more than that. No doubt there is a chance that the team of a traveller, in the dark or from fright of the horse or some other mishap, might strike against a rock on the side of the way. So, if the rock was not there, it might get into a ditch or bog or against a railing or fence, or encounter some other disaster. It is enough that the way is safe and convenient in view of such casualties as might reasonably be expected to happen to travellers. All possible accidents cannot be provided against by anybody. The judge did not give the requested instructions, but in his own words covered the grounds assumed by them, defining the municipal liability clearly and correctly. Johnson v. Whitefield, 18 Me. 286; Dickey v. Maine Tel. Co., 46 id. 483. It seems that the plaintiff's horse became frightened at cows in the road having boards on their horns, and being beyond the control of the driver, turned out of the travelled way and ran around between the ditch and the fence until the wagon brought up against a rock on the side of the road, causing the injury complained of. The instruction to the jury was that, if the accident was produced by the fright at the cows and also by a defect in the way, by the combined action of both causes, the plaintiff could not recover. This was in accordance with the doctrine established in the leading and (in our own State) important case of Moulton v. Sanford, 51 Me. 127. The plaintiff, by the learned argument of her counsel, claims that this case should be directly and positively

overruled.

Perkins v. Inhabitants of Fayette.

We are not convinced that it would be wise to do so. We know the opposite view is taken by several other courts. It is to be admitted, also, that we do not ordinarily apply the same rule in this respect, in cases of this kind, that we do in other classes of cases. The remedy sought for here is statutory and not at common law. The early cases in this State construed the statute somewhat strictly. The plaintiff contends that a town should be liable, even if the defective way is not the sole cause of the injury, provided that the co-operating and contributing cause is nothing for which the person injured is at all in fault and over which he could exercise no agency or control. This view was taken by the minority of the court in the case alluded to, but the case was decided otherwise upon the ground that the positive terms of the statute, as interpreted by previous adjudications, would not admit of such a construction. Now that the principle has been so deliberately affirmed and established, we have no hesitation in declaring that it should be firmly maintained. Its restraining influence, in view of the inconsiderateness of juries in too many of this class of cases, cannot but be productive of good. In this particular case, it would be difficult to see that, in any just and proper sense, any defect in the way Was even one of a combination of causes producing the accident. Exceptions overruled. APPLETON, C. J., WALTON, DICKERSON, BARROWS and DANFORTH,

JJ., concurred.

Where a judicial officer has not such an interest in a cause or matter as that the result must necessarily affect his personal or pecuniary interest, or where his interest is minute, and he has so exclusive a jurisdiction, by Constitution or statute, that his refusal to act in the cause or matter will prevent any proceeding in it, he may act so far as that there may not be a failure of remedy. So where a statute conferred on a county judge exclusive jurisdiction to appoint commissioners under a drainage act, held, that he might lawfully act although the petition showed that he was interested as owner of lands to be affected.

A

PPEAL from an order auditing and confirming accounts of commissioners appointed under the Drainage Act (Laws 1869, ch. 888). It appeared by the petition for the appointment of the commissioners that the county judge who granted it owned lands affected by the proceedings. The further facts appear in the opinion.

Geo. P. Avery, for appellant.

Geo. J. Greenfield, for respondents.

Matter of Ryers.

FOLGER, J. [After disposing of a question of practice and the constitutionality of the act.] The next point of the appellants arises in this way Judge METCALFE, the county judge of Richmond county, made the first order in these proceedings, that appointing the commissioners, whose official duty it was first to determine upon the necessity of the work, and then to carry it forward, and to determine what and whose lands were to be taken, what and whose lands were to be benefited, and the amount of the assessment upon the lands of each owner. It is urged that it was an important duty to make the selection of men for an office of so extensive power as those appertaining to these commissioners, powers which, in their exercise, would affect every owner of land likely to fall or be brought within the scope of the undertaking. Now, it was upon the face of the petition, which was presented to Judge METCALFE, that he was affected. It is claimed that he was thereby disqualified from acting and that his order appointing the commissioners was void, and that, as it was the base of the whole proceeding, it failing, the whole failed. It is a rule of the common law, that "no man can be a judge in his own cause." It has been said that this rule still prevails, though he be the only judge who can have jurisdiction of the case. Anonymous, 1 Salk. 396. A reference to that case does not show that such was the judgment of the court there, but that it was a remark of HOLT, C. J., which he also made in what would seem to be another case. Anon., 1 Salk. 201. In another case, Mayor of London v. Markwick, 11 Mod. 164, HOLT, C. J., was of the same opinion; but POWELL, J., contra, said, "he agreed that, regularly, a man cannot be judge and party; but in a case of necessity he may; as if a real action be brought against all the judges of the C. B." In that case it appeared that the mayor was not a necessary part of the inferior court, and it also not appearing that he gave the judgment, the action of the inferior court was held good. So, too, in The Matter of the Parishes of Great Charte and Kennington, 2 Str. 1173, it was said, that as to the case of corporations, if it appeared that there were no other justices, a party interested might be a judge, to prevent a failure of justice. And to the same effect is Comm. v. Ryan, 5 Mass. 92; recognized in Pearce v. Atwood, 13 id. 340. In Heydenfeldt v. Towns, 27 Ala. 423, it is said that it is doubtful whether the rule applies in a case where the interest is not immediate and no other judge can act. In Dimes v. Gr. Junc. Can. Co., 3 H. of L. Cas. 759, it was held

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