228 Mass. 365 | Mass. | 1917
The defendant’s railroad crosses Parker Street, a public way in the town of Gardner, on an overhead steel bridge. The width of the street between the two abutments is thirty feet, and the tracks of a street railway are located on the westerly side. The under side of the bridge is twelve and six tenths feet above the surface of the road. On the day of the accident the defendant’s employees were painting this bridge, and in doing so used a swinging staging which hung down four and a half or five feet from the structure. This staging consisted of two planks held by ropes attached to the bridge, running with the girders, and across these were two planks extending from the easterly abutment twelve feet toward the centre of the street.
There was testimony on which could be found the following additional facts: The plaintiff, driving a gentle horse harnessed to a democrat wagon, approached this overhead bridge after sundown on November 4, 1915. The atmosphere was hazy, and it was getting dark. There was a steep pitch to the street and banks on each side, and the plaintiff was within twenty feet of the bridge when he first noticed the staging. It looked like a
On the issue of his due care the plaintiff was entitled to go to the jury, notwithstanding the fact that, when he drove under this bridge in the morning on his way from his farm in Barre, the “horse did not like the looks of this swinging staging, but with a little coaxing and speaking to . . . went by.” Indeed the defendant does not argue to the contrary. On the question of its alleged negligence the defendant contends that it had a right to use the staging in the necessary painting of its bridge, and further that it was not an object likely to frighten horses. No permit to block the highway was obtained from the town authorities, but the case did not proceed on that ground.
Assuming that the defendant had a right, on the ground of necessity or otherwise, to occupy a part of the highway while painting its bridge, yet that right must be exercised with due regard to the public safety and convenience. Even if it was necessary to make use of some kind of a staging to do this work, it was the duty of the defendant to employ one which would not unnecessarily obstruct the way, or be of such an unusual character as would be likely to frighten horses. It was also its duty not to maintain the staging for more than a reasonable time; and, while it was in the highway, to use due skill and care to prevent injury to travellers, and to provide warning signals during periods of darkness. See Commonwealth v. Temple, 14 Gray, 69, 75; Morris v. Whipple, 183 Mass. 27; McCormack v. Boston Elevated Railway, 188 Mass. 342.
Ordinarily the question whether a particular obstruction of a public way is a reasonable one or is negligently maintained, is one of fact for the jury. And the same rule applies to the maintenance in a public way of a structure which is naturally calculated, and may reasonably be expected, to frighten horses of ordinary gentleness. For instance, in Jones v. Housatonic Railroad, 107 Mass. 261, where a traveller on the highway sustained injuries through
Ordered, accordingly.
