Snow v. Inhabitants of Provincetown, 120 Mass. 580

Snow v. Inhabitants of Provincetown

120 Mass. 580 | Mass. | 1876

Colt, J.

Under the instructions given in this case, the jury must have found that there was a defect in the highway, which was the sole and immediate cause of the plaintiff’s injury; that *587this defect was occasioned by the want of a suitable railing at the place where the accident happened; that the plaintiff, although she knew of the defect, and although she attempted to pass while the street at that point was obstructed in part by a horse and Cart standing across it, was nevertheless in the exercise of due care; and finally, that neither the negligence nor the wilful act of the driver of the cart, or the fear caused thereby, contributed to the injury.

This establishes the liability of the defendant, and gives the plaintiff a right to recover, unless the evidence fails to justify these findings, or unless the judge improperly refused to give the specific instructions requested upon this part of the case.

We think there was evidence to support each of these several propositions. It is not a question of its weight, or whether the verdict ought to be set aside on a motion for a new trial. The only question here is whether there is any evidence in the plaintiff’s favor proper to submit to the jury. Forsyth v. Hooper, 11 Allen, 419. The only point made at the argument was as to its sufficiency to prove that the plaintiff was in the exercise of due care. But the plaintiff herself testified that she was watching the cart and thinking how she was going to get by; that there was room enough to pass safely between the cart and the embankment at the side of the road where the railing ought to have been placed; and that it occurred to her she must be careful or she would fall. All this was some evidence that she was mindful of the danger to which she was exposed, and careful to avoid it. The jury may have believed the plaintiff, and disregarded evidence in the case at variance with her testimony. They have declared by their verdict that the care which was actually exercised was such care as a person of the plaintiff’s age and sex should be reasonably required to exercise under all the circumstances of the case. And we cannot say, as matter of law on exceptions, that the evidence does not justify the verdict on this point.

Most of the specific instructions asked for on this point were sufficiently covered by the instructions given. The third, fourth and fifth had special reference to the effect of the plaintiff’s knowledge of the defect, and of the danger in attempting to pass, upon the question of her due care. As applied to the facts dis*588closed, they were properly refused. The effect of the plaintiff’s previous knowledge is a practical question for the jury in most cases, and depends upon the character of the defect. If the obstruction or defect is such that it is absolutely impossible to pass over the road in safety; as where a bridge has been carried away, or a culvert is washed out, or a fallen tree prevents all passage, then it may be safely laid down as a legal proposition that one who knows it and attempts to go on would not be in the exercise of ordinary care; while knowledge of a defect less serious, making the way difficult and dangerous but not impassable, like want of a railing or an imperfect road bed, would only impose on the traveller such additional care as the increased exposure would demand. Whether such care was exercised is ordinarily for the jury to find. It is not true that the traveller takes the risk in all cases where, believing that he can pass safely, he attempts to pass a known defect; on the contrary, he may properly do so, if consistent with reasonable care. The instructions here asked would tend to mislead the jury, and those given instead were apt and sufficient. The jury were told that the plaintiff must exercise ordinary prudence in determining whether she would attempt to pass while the street was obstructed by the horse and cart; and in selecting the place where to pass; and while passing; and at the time of the accident. The judge could not properly be called on to point out the specific acts required of the plaintiff, hi or could he say, as matter of law, that the plaintiff was bound to have her attention directed, at the moment of danger, to the alleged defect. French v. Taunton Branch Railroad, 116 Mass. 537. Patrick v. Pote, 117 Mass. 297. Gerald v. Boston, 108 Mass. 580. Mahoney v. Metropolitan Railroad, 104 Mass. 73. Lyman v. Amherst, 107 Mass. 339. Barton v. Springfield, 110 Mass. 131. Weare v. Fitchburg, 110 Mass. 334.

The measure of prudence required of the plaintiff was stated with sufficient accuracy. Elkins v. Boston & Albany Railroad, 115 Mass. 190. Dowd v. Chicopee, 116 Mass. 93.

The jury were told that if a suitable railing would not have prevented the injury, or would have caused an equal injury, the plaintiff could not recover; and this covered sufficiently the sixteenth request. The eighteenth request was not warranted by the state of the evidence.

*589Without going over each of the numerous requests, it is sufficient to say that we see no error in the refusal to give them, or in the instructions which were given.

Exceptions overruled.