160 Mass. 272 | Mass. | 1894
The defendant’s counsel having argued to the jury that the plaintiff could not maintain her action because she admitted in her testimony that she knew of the defect and concluded to take her risk, her own counsel asked the court to rule that, if she “ saw the ice before crossing it and did not fully comprehend the danger by reason of the fact that it was not light, or otherwise, she would not be precluded from recovering.” The court gave the ruling in the words of the request, but supplemented it by further instructions, to which the plaintiff excepted, and the first question raised is whether the additional instructions were correct. They were, in substance, that if a person of ordinary intelligence would have been unable to comprehend the danger by reason of its obscurity, resulting from the absence of light or otherwise, and a person of ordinary prudence would have ventured, the plaintiff’s knowledge of the danger would riot, as matter of law, preclude her from recovering, but would be merely an element in determining whether she was in the exercise of due care; but if a person of ordinary prudence would have appreciated and avoided the danger, then she must be held to have appreciated it, and if under such circumstances she determined to cross the ice she did so at her peril, and could not recover.
It is familiar law that knowledge of a defect in the highway does not preclude a traveller from recovering, but is merely an incident to be considered by the jury in determining whether the traveller was in the exercise of due care. Reed v. North-field, 13 Pick. 94. Lund v. Tyngsboro, 11 Cush. 563. Horton v. Ipswich, 12 Cush. 488. Smith v. Lowell, 6 Allen, 39. Frost v. Waltham, 12 Allen, 85. Whittaker v. West Boylston, 97 Mass. 273. Thomas v. Western Union Telegraph Co. 100 Mass. 156. Mahoney v. Metropolitan Railroad, 104 Mass. 73. Lyman v. Amherst, 107 Mass. 339. Barton v. Springfield, 110 Mass. 131. Whitford v. Southbridge, 119 Mass. 564. Dewire v. Bailey, 131 Mass. 169. Kelly v. Blackstone, 147 Mass. 448. Pomeroy v.
But when the jury had been thus told that, if for any reason she did not comprehend the danger, she would not be precluded from recovering by the fact that she saw the ice before attempting to cross, it was also the duty of the presiding justice to give them the law-to be applied in determining whether the plaintiff, though not precluded by her knowledge of the defect, was under all the circumstances in the exercise of ordinary care. The additional instructions excepted to were pertinent to this branch of the case, and when so considered were correct. They were, in substance, that her conduct was to be tried by that of ordinarily intelligent and prudent persons in like circumstances, and that, if she took a risk which such persons would have avoided, she did so at her peril. This was correct, not because of the doctrine Volenti non fit injuria, but because so taking the risk was negligence, and the language used by the presiding justice was merely a way of saying that such conduct was not ordinary care. In Thomas v. Western Union Telegraph Co. 100 Mass. 156, 158, Hoar, J. says : “ If a party, with full knowledge of the existence of an obstruction or defect in a highway, wilfully or recklessly keeps on, and involves himself in danger which he had no reasonable cause to believe that he could successfully encounter, he acts at his own risk, and must take the consequences.” It is plain that the reason why he acts at his own risk is that it is negligence, and not due care, for one under such circumstances to involve himself in a danger which he has no reasonable cause to believe that he can successfully encounter. In dealing with the same doctrine in Dewire v. Bailey, 131 Mass. 169, 172, Field, J. says,
The plaintiff’s contention that the ruling was erroneous, because it required the jury to try her conduct by that of ordinarily intelligent and prudent persons, is wholly untenable. All travellers who have arrived at years of discretion, and are subject to no disability which should take them out of the class of persons possessed of the ordinary faculties, are guilty of negligence if they fail to use the care of persons of ordinary intelligence and prudence in like circumstances. The case of Barton v. Springfield, 110 Mass. 131, is relied on by the plaintiff as an authority for her contention that, if she used her own best judgment under the circumstances as they appeared to her, she is entitled to recover; but in that case the jury were also told that it was necessary for the plaintiff to prove affirmatively that she was in the exercise of due and ordinary care; and in the opinion Mr. Justice Colt says, “ That circumspection only is required which prudent men ordinarily use.” It is too obvious for discussion that such is the rule applied to all ordinary persons, and that no qualification of it can logically, or consistently with the authorities, be made in the case of an individual of that class. See Leistritz v. American Zylonite Co. 154 Mass. 382, 384. In the plaintiff’s brief her counsel states that the question was whether she was precluded from recovering by her own want of due care and diligence. Upon this question the rulings excepted to were correct. The presiding justice was not asked to rule that knowledge of the defect, however full and clear, would not of itself prevent the plaintiff from maintaining her action. Upon the question of the effect of her knowledge the jury were instructed as she requested, and the additional rulings were upon the question of due care.
