73 Mass. 100 | Mass. | 1856
The case of Palmer v. Andover, 2 Cush. 600, is much relied upon to sustain the ruling in favor of the plaintiff in the present case. That case, although not having the weight of a unanimous opinion of this court, was deliberately considered and settled, and is to be taken to be the law of this commonwealth applicable to similar cases. In coming to the result we did in that case, we were fully aware of the difficulty of drawing a well defined line between the cases where responsibility would, and where it would not attach to the town, when the injury was occasioned in part by other causes than that of a defective highway. Each case, as it occurs, must be decided, in that respect, upon its own peculiar circumstances.
The case of Palmer v. Andover presented the case of a defective highway, and to such extent defective as not to be in proper repair for ordinary travel, for want of a suitable rail or barrier. It was also made to appear to the satisfaction of the jury that such rail or barrier, thus required for security of the traveller, would have prevented the happening of the injury complained of. The injury sustained in that case was the combined effect of an accident occurring to the carriage and the defect above stated in the road; the accident being one which common prudence and sagacity could not have foreseen and provided against. The damage occurred wholly on the highway, and with no cooperation, nor through any negligence of a third party. The case was one where no duties had been neglected, nor any defaults occurred on the part of any one, except the town of Andover. Under these circumstances, the court held that the plaintiff was entitled to maintain his action.
In the case now before us another element is alleged to exist. The defendants allege that the injury to the plaintiff commenced by her feet slipping without the limits of the highway for whose repair the defendants are responsible; that the slipping commenced upon the steps of the post-office building; that those steps were covered with ice, and were in an unsafe state;
We do not feel authorized to sustain so broad a principle as seems to have been adopted at the trial, as to the responsibility of towns for neglect to repair their highways. We think the ruling goes further than that of Palmer v. Andover. It adopts the doctrine, that the injury may result from the combined effect of negligent acts of omission or commission, inconsistent with ordinary care, on the part of a third party, and an existing want of repair in the highway, and yet the town be charged with the damages occasioned by such injury thus proceeding in part from causes wrongfully existing without the limits of the highway.
But we think the only exception to the rule, that the plaintiff cannot recover unless the defect in the highway was the sole cause of the injury, must be one like that in Palmer v. Andover, where the contributing cause was a pure accident, and one which common prudence and sagacity could not have foreseen and provided against. The contributing cause of the injury here was of a different character, involving default and negligence without the limits of the highway. If the injury was caused only through the combined effect of slipping upon the steps, which were out of repair and unsafe, and upon the sidewalk, which was also out of repair and unsafe, the defendants would not be responsible therefor. New trial ordered.
