169 Mass. 271 | Mass. | 1897
These two cases come before us on the report of the justice presiding at the trial. A plan and photographs of the place of the accident were submitted to the jury, and produced before us at the argument, and all the material evidence on the question of the liability of the defendant town was reported. The report states the case as it appeared from the evidence as follows:
“ These are actions of tort to recover damages for personal injuries to the plaintiffs while driving upon a highway in the town of Great Barrington on November 2, 1896. Both cases were tried with a jury. The jury took a view of the highway where the accident took place. It was admitted that the highway was a public highway, for the condition of which the defendant was responsible, and that the defendant received due notice of the time, place, and cause of the injuries.
“ The pleadings may be referred to. On the trial, the testimony of both plaintiffs and defendant showed, and it is admitted, that on the second day of November, 1896, between two and three o’clock in the afternoon, the plaintiffs, who are brother and sister, were driving together from their home in the adjoining town of Egremont to the village of Great Barrington. They were in a market wagon, were carrying a barrel of apples, and were driving a single horse.
“ While driving upon a portion of the highway which was
“ The plaintiff introduced evidence tending to show that at the place of the accident the road as constructed was seventeen and eight tenths feet wide from shoulder to shoulder, and that deep ditches descended from the sides at an angle of about forty-five degrees; that the depth of the ditch on the side where the accident occurred was three and a quarter feet from the highest point of the road-bed; that the travelled part of the road-bed came within a few inches of the shoulders of the road where the ditches began, and that there was no railing ; and claimed that the narrow roadway, deep ditch with a sharp descent near to the travelled way, without railing or guard, constituted a defect which due care on the part of the town should have prevented, and that the town could have prevented the same by making the slope of the bank more gradual, or by a railing. The width of the highway between fences was fifty-nine feet.
“ The defendant introduced evidence tending to show that the soil under and adjoining the highway was of clay, and had a tendency to hold water; that many years ago it was almost impassable at certain seasons of the year, especially for loaded teams, on account of the mire; that in 1871 the roadway was raised or turnpiked with ditches on each side to drain, off the
“ The defendant claimed that, if the town maintained a highway in which the travelled portion was of the width shown in the evidence, level, smooth, and free from obstructions, and with shoulders a few inches in width, and a ditch upon each side about three feet in depth, and the evidence showed that the ditches were not deeper than was necessary to properly drain the road-bed, the underlying soil of which was of clay and liable to hold water, and so make the travelling difficult at certain seasons of the year, the highway cannot be said to be defective.”
At the conclusion of the evidence, the defendant in each case requested the court to rule that, upon all the evidence, the plaintiff could not recover, which the court refused to do, and submitted the cases to the jury, under instructions not excepted to, and the jury in each case found for the plaintiff. This refusal raises the only questions of law to be considered, and they are whether there was evidence for the jury that the plaintiffs respectively were in the exercise of due care at the time when they were injured, and also evidence that they were injured by reason of “ a defect or want of repair, or of sufficient railing, in or upon ” the highway, which might have been remedied by reasonable care and diligence on the part of the town, and which rendered the highway not “ reasonably safe and convenient for travellers.” Pub. Sts. c. 52, §§ 1,18.
A part of the testimony of George E. Harris, who was driving the horse at the time, is as follows: “ I was driving from Egremont into Barrington; I got along as far as between Mr, Kerner’s and Mr. Taylor’s farm-house ; I think about midw'ay,
He also testified that “ there was probably a foot and one half or two feet to the ditch ” from the wheels next to the bank where he had turned out, and that “ the horse jumped right off; sprung back and went right square off” ; that the horse “ was on a walk; might have been on a little jog ”; that he was well in hand, and was an “ ordinary, gentle horse ” ; that when “ I saw that I had got to go off of that place, ... I fetched the horse around all I could, so as to go straight off ”; and that “ I thought perhaps if I done that I wouldn’t upset. I knew if I went off sideways I would go over then anyways. So I thought if I went off square I would save myself.”
On this evidence it was for the jury to say whether, if there was any loss of control of the horse, it was or was not momentary, and whether, under the circumstances, the plaintiff Harris did or did not exercise due care. Hinckley v. Somerset, 145 Mass. 326.
We are of opinion that the highway was not defective by reason of the narrowness of the wrought or travelled part of it, which seems to have been wide enough, but we think that the plaintiffs might properly contend that the space between the travelled part of the road and the shoulder where the slope of the ditch began was too narrow, the space being at most not more than six or eight inches wide ; that the slope was too steep, being at an angle of about forty-five degrees with the road-bed, and that the ditch was too deep, being about three feet deep. We cannot say, as matter of law, that these facts were not evidence for the jury that the highway was defective for want of a sufficient railing. Whether a highway is reasonably safe and convenient for travellers, or is defective, is ordinarily a question of fact for the jury. What the test as
Judgment on the verdicts.