Edwin R. Yale versus The Hampden and Berkshire Turnpike Corporation, 18 Pick. 357

Shaw C. J. drew up the opinion of the Court. It appears by the report, that the plaintiff’s horse, whilst travelling on the defendants’ turnpike road, the plaintiff having paid toll or being liable to pay toll, broke through a defective place in the surface of the road, and thereby sustained some damage. The defendants offered to prove, that the road was originally well and thoroughly made, and that they used all due diligence to discover defects and keep the road in repair ; from which it would result, that the defect was a latent one, not discoverable by care and diligent superintendence.

The evidence of these facts was rejected, on the ground, that if proved, they would not amount to a legal defence ; and the question for the Court is, whether these facts, if proved, would show a good defence It is proper, in the outset, to distinguish between the lega’ liability of turnpike corporations and that of towns. The lan guage, as well as the policy, of the law differs essentially in the two cases.

The provision of the general turnpike act, Si, *°0-l, c. 125, § 6, is this ; “ and the said corporation shall o* .table to pay all damages which may happen to any person from whom toll is demandable, for any damages which shall arise from defect of bridges or want of repair of said turnpike road.” The Court are of opinion, that by this act it was intended tc provide, that whenever the traveller himself is not chargeable with negligence or rashness, but where from an unforeseen cause the road is actually defective and in want of repair, and an accident occurs without the default of either party, the company should be held liable.

It is founded on the consideration, that the toll is an adequate compensation for the risk assumed, and that by throwing the risk upon those who have the best means of taking precautions against it, the public will have the greatest security against actual damage and loss. This is also the most literal and natural construction of the words of the statute. It makes the company liable to all those from v\hom toll is demanda s' e, for the damages arising from the defect of bridges and want of repair of the turnpike road, without regard to the cause of such unsafe condition.

This construction of the statute is not likely to expose turnpike corporations to any extraordinary burden, because if there be a bridge broken down or a chasm made by floods, or other open and visible obstruction, and the traveller through his own negligence or rashness should fall in and suffer damage, such damage would be attributable to himself, and could not be said m arise from want of repair in the road. Exceptions overruled, and judgment on the verdict fcr the plaintiff