153 Mass. 514 | Mass. | 1891
This is an action to recover damages for perspnal injuries alleged to have been caused by a defect in the highway. The alleged defect was a telephone wire which sloped down from a house to which it was fastened, and lay across the highway. Whether the wire was broken before the time of the accident, or whether it still was attached on the other side of the way to another house five or six hundred feet away from the one first mentioned, is not very clear, and is not material. The only support which there had been between these two points was a bracket on a pole (in the road, as we understand), and this had been gone for about a week. There was evidence that the wire was down within a foot of the ground the night before the accident. The wire was caught in the wheels of a wagon which
It is argued that the wire was not a defect. But it was fixed at one end, at least, and the jury might have found that it came down to the road in such a way as permanently to obstruct travel, so that it resembled “ a barrier fixed or stretched across the way,” which was admitted to be a defect, rather than the rope of a derrick being moved by third persons, for which a city was held not to be liable in Barber v. Roxbury, 11 Allen, 318, 320. French v. Brunswick, 21 Maine, 29. The jury might have inferred, from the length of time that the wire had been down, that the town had or ought to have had notice of the defect.
The main argument for the defendant is, that, whether the wire was a defect or not, it was not the sole cause of the injury, but that the conduct of the driver of the other wagon concurred in bringing about the plaintiff’s hurt. If, in the opinion of the jury, the other driver was negligent as towards the plaintiff, and thus had a hand in causing the injury, no doubt the plaintiff cannot recover. Kidder v. Dunstable, 7 Gray, 104. Pratt v. Weymouth, 147 Mass. 245, 252. But the jury might have found that the other driver was not negligent, and, indeed, that until it was too late he was wholly unaware of his entanglement, or that there was a wire in the road at all. If so, his co-operation stood on no different footing from the force of gravitation. A town is not exonerated because other causes co-operate with the defect; if it were, it never would be liable. Human causes stand no differently from any others merely as such. The limit of the statutory liability of towns is only the strictest form of the limit of the liability of wrongdoers. To an extent not yet perhaps exactly determined, wrongdoers are presumed not to contemplate wrongdoing by others unless they are shown in
The other objection urged to the plaintiff’s right to go to the jury was that it did not appear that notice was given to the town, as required by statute, within thirty days of the accident. Pub. Sts. c. 52, § 19. St. 1882, c. 36. St. 1888, c. 114. By the plaintiff’s testimony the accident happened on February 7, 1889. The notice gave the same date. The town clerk produced the notice, and testified, solely, as he said, from inspection of a memorandum upon it, that it was received on February 6, 1889. Another witness, the former counsel for the town, testified that he heard of the accident through the notice during the last month of his official year, which year ended on March 4,1889.
We are of opinion that the learned judge erred in directing a verdict for the defendant. Exceptions sustained.