282 Mass. 312 | Mass. | 1933
The plaintiff seeks in this action of tort to recover compensation for personal injuries sustained by him while riding on the back seat of an automobile, owned by another, on a Sunday afternoon in the latter part of October on a highway in the defendant town. The evidence in its aspect most favorable to the plaintiff tended to show that the place where the accident happened is about a mile from the Vermont line on a gravel, narrow, back country road in an exceedingly stony country travelled very little and some days not at all. Vehicles had to follow one rut. The sides of'the road sloped to let the water run off. Two automobiles could not pass. The condition of the road in general and at the place of injury was described as having a lot of “cobblestones imbedded, but they were sticking out along the road . . . the size of an ordinary cocoanut; some a little larger, and some smaller . . . some of them would be out two or three inches and more. That is, there was a lot of this loose gravel. . . . There were larger stones” where the accident happened. The precise place of the accident was described as “a couple of rocks in the road . . . and sort of a hole, a hole right in between there, and the hole was about six or seven inches deep, ” about a foot long and eight or nine inches wide. The rocks were about six inches above the road and four or five inches wide. One rock was bigger than a football and the other smaller, and there was about a foot between them. It was simply a hole between the two rocks six or seven inches deep. There
There was no evidence that this condition had been brought to the attention of any officer of the town. Apparently there was only one house in the neighborhood. So far as appears the only person travelling over the road regularly was a milkman who testified that no such place existed as was described by witnesses for the plaintiff.
After verdict for the plaintiff, the trial judge under leave reserved but subject to the plaintiff’s exception directed that a verdict be entered in favor of the defendant. G. L. (Ter. Ed.) c. 231, § 120. Therefore the defendant is entitled to invoke support for that direction on any ground. Proctor v. Dillon, 235 Mass. 538, 540.
It is provided by G. L. (Ter. Ed.) c. 84, § 1, that “Highways and town ways shall, unless otherwise provided, be kept in repair at the expense of the town in which they are situated, so that they may be reasonably safe and convenient for travelers, with their horses, teams and carriages at all seasons.” These statutory words are the same as were used for many years before the automobile was thought of. Respecting the liability imposed by this statute it was said in Raymond v. Lowell, 6 Cush. 524, at pages 534-535: “Towns and cities are bound to exercise ordinary care and diligence, to keep the highways and streets reasonably and relatively safe and convenient. . . . Some roads are laid over very
The alleged defect in the case at bar was on a remote country road in a small town abounding in rocks with a small assessed valuation and with many miles of road. To maintain such roads in a condition so that automobiles can pass over them without unusual jounces would impose an impracticable burden upon such a town. We are of opinion that the circumstances here revealed come within the authority of the cases just cited and did not constitute an actionable defect. See also Neilson v. Worcester, 219 Mass. 88; Cannon v. Brookline, 256 Mass. 468.
The burden was upon the plaintiff to show also that the defendant either had or by the exercise of proper diligence
Exceptions overruled.