153 Mass. 409 | Mass. | 1891
The only exception now insisted on by the defendant is the exception to the refusal of the court below to give the following instruction, and to the instructions actually given upon this point: “ If the city had exercised reasonable cax-e and diligence to guard the hole and prevent the accident or ixxjury, it would not be responsible fox- the momentary negligence of one of the railway company’s employees.” The court instructed the jury, among other things not objected to, as follows: “It is a question purely of. fact for you whether such barriers or safeguards existed in this case as were reasonably required. . . . The city must, either by lights, bars, or boards, or in some other way, provide a reasonable safeguard. In ordinary cases, the city would not be liable if those barriers or safeguards were removed by othex-s; but in this case it is competent for the jury to consider the fact that it was known that horse cars would pass the' barrier in question, and that it would frequently have to be removed in order that the cars might pass over the trench; and it is for the jury to say, under all the circumstances of the case, whether this barrier was sufficient, whether this was all the
We think the instructions thus given stated the law accurately, and with sufficient fulness. The city knew of the existence of the trench, and of its depth and extent. It knew also that the barriers would need to be frequently removed to accommodate passing cars, and that the street was much travelled at this place; and it knew still further, that the railroad company had stationed two men there for the purpose of moving and replacing the barriers. It adopted no additional safeguards of its own, and took no further steps for the protection of those having occasion to pass along the street. It evidently trusted to the railroad company and its servants to exercise-proper care to prevent an accident or injury to any one. And it was eminently a question of fact for the jury, whether the defendant, in view of all the circumstances, had or had not exercised reasonable care and diligence. The Pub. Sts. c. 52, § 18, do not change the rule of law as to what constitutes' reasonable care and diligence; but only provide that, in case of injury from a defect in a way, a city or town shall not be liable unless the defect could have been remedied by the exercise of reasonable care and diligence on the part of the city or town. Gorham v. Gross, 125 Mass. 232. Rooney v. Randolph, 128 Mass. 580. It was the duty of the city under that statute to use reasonable care and diligence to see that its highways and streets were safe for travellers thereon. The fact that the accident to the plaintiff was due to the momentary failure of the servants of the railroad company to replace the barriers would not relieve the defendant from liability. The defendant saw fit to intrust to