35 Me. 100 | Me. | 1852
— The existence of the road in traveling over which the accident which is the subject of this suit, occurred,
It is well settled that for any defect, however slight, the town is responsible, if damage occurs in consequence thereof without fault or negligence on the part of the person injured. But what is a defect and whether any defect however slight exists, is to be submitted to the jury. The Jaw has not prescribed what imperfections in a road would constitute the defect referred to in the statute ; it was a fact for the jury to settle, what condition would render it safe or otherwise.” Merrill v. Hampden, 26 Maine, 234. So too, the question of ordinary care on the part of the person driving must depend upon the facts as they may be developed in each case, and is one entirely for the determination of the jury. In Bigelow v. Rutland, 4 Cush. 247, instructions respecting ordinary care, precisely like those given in this case in reference to defects in the road, were requested by counsel and refused by the Court, and such refusal was held in accordance with the law. The instruction, as given, withdrew the question as to whether there was a defect or not from the jury, and the Court determined absolutely, as matter of law, what should be considered as a defect. The Court should have left that question to the tribunal, to whom its decision exclusivély belongs. Morton v. Fairbanks, 11 Pick. 368; Percival v. Maine Mutual Ins. Co. 33 Maine, 242.
Exceptions sustained. New trial granted.