261 Mass. 236 | Mass. | 1927
The declaration alleged that the defendant negligently, maliciously and wilfully drove his teams and automobile trucks into the plaintiff’s fence and “broke holes therein” to the plaintiff’s damage.
It was found that the plaintiff and defendant owned adjoining lands in North Adams; that the plaintiff built and maintained a wire fence “along and upon the southerly line of his land which was the boundary line between lands of
The judge based his finding that the defendant was free from negligence on the fact that the roadway on the defendant’s land was in “close proximity” to the fence and that “holes or uneven places in the road would cause the vehicles to lurch or swerve sufficiently to cause the injury.” These facts did not relieve the defendant from liability for the damage brought about by his acts.
The defendant was the owner of the land on which the roadway was constructed. It was in his possession and under his control. If the way was so near the plaintiff’s fence that the defendant could not use it without injury to the plaintiff’s property and he continued to use it, and on several occasions, because of the nearness of the roadway,
The order dismissing the report is reversed and an order is to be entered directing a new trial of the case.
So ordered.