Judd v. Fargo

107 Mass. 264 | Mass. | 1871

Ames, J.

Upon the question whether the use which the defendant was making of the public highway adjoining his own land was reasonable, he was entitled to show, if he could, that it was an obscure cross-road, but little frequented by travellers at all seasons, and particularly at the time of year when the accident happened. The rule is laid down in O'Linda v. Lothrop, 21 Pick. 292, that, in deciding what may be deemed a proper and reasonable use of a way, public or private, much must depend on the local situation, and much upon public usage, Carriages may stand, and goods may be received, at the door of the adjoining proprietor, although some temporary inconvenience to travellers may thereby be occasioned. All that the law requires in such a case is that the obstruction shall not be continued for an unreasonable length of time. Commonwealth v. Passmore, 1 S. & R. 217, 219. People v. Cunningham, 1 Denio, 524. The standing of a carriage, or the delivery of coals or other bulky articles, by the roadside, in a crowded thoroughfare in a populous city, might occasion so great and general an inconvenience that the reasonable time for the removal of the obstruction would allow no delay that could be avoided. The same kind of obstruction, in a country road but little frequented by travellers, might continue for a much longer time without amounting to a substantial or practical obstruction to the public right. The measure of diligence and reasonable time would be different in the two cases. It appears to us therefore that the evidence offered by the defendant as to the amount and frequency of the travel upon that road, so far from being immaterial, was competent and important, and should have been received.

The evidence offered to show that the state of things on the defendant’s premises was such as to render it convenient to him to leave the sled, with its load, standing within the limits of the road; and also that other persons, owning land on this and other roads in the vicinity, were accustomed to do the like; was properly excluded. It had no tendency to make out the defence. The judge was right also in refusing to rule that the owner of land may make such use of the highway adjoining his land as is usually made by others similarly situated.

The instructions given to the jury do not appear to have been objected to in any other respect. The exclusion of the evidence as to the frequency of travel upon the road, however, renders a new trial necessary, in which the jury must decide whether, under all the circumstances, the defendant at the time of the accident was making a proper and allowable use of the road.

Exceptions sustained.