101 Mass. 93 | Mass. | 1869
In order to render a town or city liable on account of an accident happening on a highway, it must happen to a traveller, and the defect of the way must be the sole cause of the injury. Rowell v. Lowell, 7 Gray, 100. Stickney v. Salem, 3 Allen, 374. If a horse gets loose and runs upon the highway, the town is not liable. Richards v. Enfield, 13 Gray, 344. In Davis v. Dudley, 4 Allen, 557, this principle was applied to a case where the horse escaped from his driver while travelling on the way. In Titus v. Northbridge, 97 Mass. 258, and Horton v. Tawnton, Ib. 266, it was applied to cases where the horse had not escaped from the driver, but had got entirely beyond his control. In those cases there was no evidence sufficient in law to establish the fact that the driver was exercising any control over his horse, or that the defect m the highway was the sole cause of the injury.
It is the duty of the court to decide such cases as presenting
In the present case there was some evidence for the plaintiffs sufficient to authorize the presiding judge to submit it to the jury. He did so with careful and accurate instructions in respect to the law. Upon a comparison of the testimony of Miss Babson with the plan which was in evidence, the court cannot see that the carriage had not got so far off the road and over the bank as to be beyond the control of the horse before she and Hartwell lost control of him, and that a proper railing would not have prevented the accident.
The decision of the case depends upon a considerable number of circumstances, and the inferences of fact which are to be drawn from them. Exceptions overruled.