17 A. 860 | R.I. | 1889
This is an action of the case against the defendant, in his capacity as town treasurer of Middletown, to recover damages for injuries suffered by the plaintiff, Mrs. Mahogany, by reason of the neglect of the town to keep one of its highways safe and convenient for travellers, as required by the statute. The neglect complained of was that the town permitted a post to remain on the side of the highway, so near to the travelled part as to be dangerous to persons driving along such highway. At the trial the defendant contended that, as the accident occurred on the side of the road, outside of the travelled carriage way, and as the plaintiff, Mrs. Mahogany, left the carriage way without necessity for so doing occasioned by the condition of the highway, she assumed the risk of, or incident to, travelling outside of he carriage way. The plaintiffs in reply alleged, and offered testimony to prove, that one Abner B. Lawton was at the time driving on the highway opposite, or nearly opposite, to the post complained of, and that he neglected to turn to the right of the centre1 of the travelled part of the road, and thereby compelled Mrs. Mahogany to drive upon the side of the road, where, notwithstanding she was in the exercise of due care, her carriage came in contact with the post and she sustained the injuries, to recover damages for which this suit is brought. The defendant urged, in reply to this allegation of the plaintiffs, that if the injuries resulted from the wrongful act of Lawton in not driving to the right of the centre of the travelled way, or would not have occurred but for his act, the town was not liable, and requested the court to so instruct the jury. The court, however, charged the jury that, notwithstanding the accident might not have occurred but for the wrongful act of Lawton in not turning to the right of the travelled path, yet, if the accident would not have occurred but for existence of the post on the bank, or side of the road, the town, if otherwise *481 liable, would not be relieved simply because the wrongful conduct of Lawton concurred in causing the accident or injury. The defendant excepted to this charge, and also to the refusal to charge according to his request, and, the jury having returned a verdict for the plaintiffs, now petitions for a new trial, alleging among other grounds that the court erred in its instruction and refusal to instruct as stated above.
The instruction of the court to the jury applied to the case at bar the rule adopted in Hampson v. Taylor,
The rule above stated is subject to the qualification that, if the intervening act is such as might reasonably have been anticipated as the natural or probable result of the original negligence, the original negligence will, notwithstanding such intervening act, be regarded as the proximate cause of the injury, and will render the person guilty of it chargeable. Wharton, Law of Negligence, § 145; 2 Thompson on Negligence, 1089, § 6; Lane v. Atlantic Works,
Petition granted.