Britton v. Inhabitants of Cummington, 107 Mass. 347

Britton v. Inhabitants of Cummington

107 Mass. 347 | Mass. | 1871

Chapman, C. J.

There can be no doubt that a traveHer on the highway may stop his horse, ahght from his carriage, and employ himself, while out of his carriage, in acts that have no connection with his journey or its purpose. Babson v. Rockport, 101 Mass. 93. Such a position and such employment, for a reasonable time, would not of itself deprive him of his rights as a traveHer. Rests of such a character, during a journey, are common. They may be of such a character as to make it clear that the party has ceased to use the highway as a traveHer, and when there is no evidence that the plaintiff is using it as a traveHer, it is the duty of the court to take the case from the jury, as in Stickney v. Salem, 3 Allen, 374. So if there is no evidence that the plaintiff used due care, or had the control of his horse, or that the way was out of repair. But it appears to us from the report, that on aH these points there was sufficient evidence to go to the jury. There was evidence of care, before the horses began to back ; and though the plaintiff appears to have lost control of *350Ms horses, yet it would be competent to the jury to find, upon the circumstances stated, that it was only a momentary loss. There was also evidence that the want of a railing at that place was a defect. It is not necessary to consider whether the circumstances would satisfy the jury. It is only decided that the evidence is not so defective as to justify the court in taking the case from the jury.

Case to stand for trial.

The case was tried again, and a verdict returned for the plaintiff with damages in the sum of $2000, .before Rockwell, J., who allowed the following bill of exceptions :

“ As evidence that he was in the exercise of ordinary care at the time of the accident, the plaintiff testified on all points in the case, and among other things that on August 6, 1870, he was going from Goshen to Lanesborough with his family, in a roekaway drawn by a span of horses which were sixteen hands high, heavy and Mgh forward, and held their heads very high ; that he had had the horses fifteen months, and they were perfectly gentle, and though they were spirited any one could drive them with one hand; that Ms wife could drive them; that, by the- side of the road where the accident occurred, he saw some very large red raspberries, and got out to pick them; ” and further as follows : “ I stopped about the centre of the road, handed the reins to my boy, (who had often driven the horses and was physically and mentally the smartest boy I have at his age,) stepped out of the carriage and walked back to where these berries were — about a rod back of where we stopped. At this place, there was a stream on the left hand side and a Mgh hill on the right. The road was level. After I had picked perhaps half a dozen berries, I heard my wife say 1 Winchester.’ I looked and saw everything was quiet, but, she having called me, I stepped two or three steps, when she said, 6 Come quick, the horse’s head is caught.’ Then I started to run. I stepped in between the carriage and the stream, and when I arrived there I perceived that the nigh horse had caught in some way Ms head underneath the check rein of the off horse. These horses were more powerful than beautiful one six and one seven years old, quite high spirited. I do not *351think my wife and boy had ever driven them without I or some one was with them. I had a man who used to drive out with the family, and I have seen him let them have the reins, the same as with me. I did not observe the slope of the embankment until afterwards. As I went along, I did not observe whether there was any railing. The raspberries were on the side of the road towards the stream. I took no' notice as to a railing on the embankment. I noticed there was a stream below me, but the railing 1 thought nothing about before the accident. I-did not know that the law required any railing. It was a pretty narrow road. The hill at the right, the original timber had been cut off; it was more or less woody, and the road was shaded somewhat by the hill and the shrubbery. I do not think it was warm for the season. The flies did not plague the horses, to attract attention. It is common for flies to plague horses in August. These horses were sensitive to flies, as all horses are.”

“ The plaintiff further testified, that at the time he reached the horses’ heads they had not moved from their position; that, as he reached up to get the check rein off, the nigh horse reared a little, and he could not reach the rein, and from the tightening of the rein or some other cause the off horse then began to back; that he then seized the bits with both hands, and both horses began to back; that the forward wheels turned under the rockaway; that the horses, as he thought, did not back more than two or three feet before the hind wheels of the rockaway were going down the slope towards the stream; that there was a precipitous bank here of some eight or nine feet; that he thought he had stopped the first backing, but after the carriage had got on the slope it was the carriage that drew the horses back, and when he saw that the carriage must go over the bank he exerted himself to keep the horses at right angles with the carriage, so that when they should go off the bank they might not go upon the carriage ; that the carriage went over squarely, and struck the bottom of the stream; that, about that time, the horses saw the bank and jumped and ‘ we all went over together ; ’ and that, had he been in the carriage himself, he must have got out in order to disengage the horse’s head, and should have done just as he did do.

*352“ Full instructions were given, in accordance with the opinion of the supreme judicial court in this case, on the question whether the plaintiff at the time of the accident was a traveller.

“ The foregoing evidence of the plaintiff was all the evidence in the case, to show that he was in the exercise of ordinary care The defendants requested the judge to rule that the plaintiff upon his own testimony was not in the exercise of ordinary care; that upon all the evidence in the case, as matter of law, he was not in the exercise of ordinary care ; and that the action could not be maintained. But he refused so to rule, and submitted the question whether the plaintiff was in the exercise of ordinary care, as a question of fact, to the jury.”

These exceptions were argued by the same counsel at September term 1872, upon the single question of the sufficiency of the evidence for the jury on the question of the plaintiff’s care.

By the Court.

There was evidence proper to be submitted to the jury, in the opinion of a majority of this court.

Exceptions overruled.