107 Mass. 339 | Mass. | 1871
The court is of opinion that the instructions given at the trial were sufficiently favorable to the defendants. The evidence tended to show that, while the plaintiff was travel-ling over a steep road in Amherst, his horse, either by stepping on a rolling stone, or because of the soft and yielding character of the road-bed, for a moment lost the control of his load, and was drawn backward, by its weight, over the banks of the road. The alleged defect was the want of a suitable railing .at the place where he went over. Under the instructions, the jury were re
The defendants presented thirteen prayers for instructions. The presiding judge adopted the second, eighth and ninth, and refused the others. We think such refusal was right.
1. The fact that the plaintiff was acquainted with the road does not necessarily prevent his recovering, and the court properly left this fact, in connection with the other evidence, to the jury, to be by them considered upon the question of due care on the part of the plaintiff. Frost v. Waltham, 12 Allen, 85.
2. The third, fourth and fifth prayers relate solely to the question whether the road-bed was defective. We do not see that this question was material. Whether the road-bed was defective or not, the town would be liable upon the other facts which the jury were required to find under the instructions. Babson v. Rockport, 101 Mass. 93.
3. The instructions given upon the subject embraced in the sixth prayer were in conformity with the decision in Babson v. Rockport.
4. The instructions given required the jury to find that the load was a suitable one, and thus adopted, in substance, the seventh prayer.
5. In answer to the tenth prayer, the court correctly stated the rule to be, that “ the town was bound only to provide a railing suitable for the ordinary exigencies of travel upon such a road at such a place.” Whether such a railing would resist and stay a team loaded as this was, was a question of fact for the jury.
6. The proposition stated in the eleventh prayer cannot be sustained as law. We have already seen that upon the facts of this case, as found by the jury, the town is liable.
Upon the whole case, we are of opinion that the defendants were not aggrieved by any of the rulings or refusals to rule at the trial.
Exceptions overruled.