James Currier versus The Inhabitants of Lowell, 16 Pick. 170

Putnam J. delivered the opinion of the Court. In regard ' to the motion of the defendant to dismiss the action, on account of the death of the plaintiff, we think that the law upon this subject is well stated in Tidd’s Pract. (1st Am. edit.) 846. “ If either party after verdict, had died in vacation, judgment might have been entered that vacation, as of the preceding term, and it would have been a good judgment at common Jme, as of the preceding term ; though it would not be so upon the statute of frauds in respect of purchasers, but from the signing.

And if either party die after a special verdict, and pending the time taken for argument or advising thereon, or on a motion in arrest of judgment, or for a new trial, judgment may be entered at common law after his death, as of the term in which the postea was returnable, or judgment would otherwise have been given nunc pro tunc ; that the delay arising from the act of the court may not turn to the prejudice of the party.” And although there can be no appearance for the party who has deceased, yet the court will hear from any one of its officers, as an amicus curiae, any suggestions as to the merits.

Ilsley's Case, 1 Leon. 187. In Oades v. Woodward, 1 Salk. 87, the attorney for the plaintiff was permitted to enter the judgment as of a preceding term, although the party died in the vacation. The death of the party was not considered as a revocation of the power to confess the judgment. If the party died at the same term when the suggestion was made, the court would not take any notice of it, but proceed to enter up the judgment.

And in that case the court entered up judgment in 22 Car. 2, as of Michaelmas term, 20 Car. 2, when the party who had died was in full life, the cause having been pending from that time, but no continuances having been entered. That proceeding was held to be well warranted by the common law and by statutes. Crispe v. Jackson, 1 Sid. 462. The court will go back to the time when the judgment might have been rendered on the verdict, if no motion had been made which prevented it. Tooker v. Duke of Beaufort, 1 Burr. 147 ; Mayor of Norwich v. Berry, 4 Burr. 2277.

It was stated at the argument, that the plaintiff deceased on Saturday after the commencement of this term. And we are all of opinion, that the judgment may legally be rendered as upon some day of the term when he was in full life. The liability to keep highways and bridges in repair is clearly upon towns, unless some other liability is shown to exist. The defendants contend, that the St. 1830, c. 4, creates such other liability and imposes such duty upon the Boston and Lowell Rail-Road Corporation, and therefore that they (the defendants) are not answerable to the plaintiff.

The judge, who sat at the trial, instructed the jury, that the defendants continued liable, notwithstanding that act of incorporation. The liability of the rail-road corporation is immediately to the selectmen of the town, in which the rail-road crosses a highway. But the liability of the town to travellers remains as it was by the St. 1786, c. 81, § 1. The work is to be done reasonably and properly, to the satisfaction of the selectmen ; and if it should not be so done, the selectmen may make the necessary alteration themselves, and recover the expense from the rail-road corporation.

So that the case stands in regard to travellers just as if the inhabitants of the town were making extensive alterations in a highway, or were making a new bridge or repairing an old one upon a highway. They must conduct the work in such manner as that the persons and property of the travellers passing, shall not be unreasonably exposed. Suppose a road or bridge were carried away by a torrent, the legislature intended that the repairs should be made within a reasonable time, and that proper guards > or cautions should be set up and made known to travellers to prevent injuries.

The remedy for the traveller, who is injured in person or property, is immediately against the town, upon which the liability is imposed by the statute. Whether or not the town has any remedy over for neglect against those employed in the work, is a matter with which the traveller has no concern. We think the instruction given to the jury at the trial was correct. Judgment according to verdict.