Stone v. Inhabitants of Hubbardston, 100 Mass. 49

Stone v. Inhabitants of Hubbardston

100 Mass. 49 | Mass. | 1868

Gray, J.

Some of the rulings excepted to relate to the question whether the plaintiff was wanting in ordinary care, and others to the question whether there was a defect in the highway for which the town was liable.

1. Upon the question of the plaintiff’s care, the defendants had introduced evidence that the plaintiff’s horse was vicious and had a bad habit of shying, and that the plaintiff was driving at an unusual and improper rate of speed at the time of the accident.

The fact that a horse starts or shies at an object in the highway (whether such object is or is not a defect in the way) and is thus brought in contact with a defect, arising either from want of proper repair in the surface of the highway or of sufficient *55railing at the side of it, is not conclusive against the right of the driver to recover damages against the town for an injury thereby resulting to him; for the most gentle, intelligent and well broken horses will sometimes, in spite of all precautions and efforts of their driver, and yet without in any just sense escaping from his control, swerve out of their direct course to avoid a defect, or what seems to them to be a danger, in the road. The test of the town’s liability in such a case has been determined by this court, upon much consideration, to be that “ where a horse, by reason of fright, disease or viciousness, becomes actually uncontrollable, so that his driver cannot stop him, or direct his course, or exercise or regain control over his movements, and in this condition comes upon a defect in the highway, or upon a place which is defective for want of a railing, by which an injury is occasioned, the town is not liable for the injury, unless it appears that it would have occurred if the horse had not been so uncontrollable; but a horse is not to be considered uncontrollable, that merely shies or starts, or is momentarily not controlled by his driver.” Titus v. Northbridge, 97 Mass. 258. Horton v Taunton, lb. 266 note. Fogg v. Nahant, 98 Mass. 578.

In the case at bar, there was no evidence tending to show that the horse had escaped from the plaintiff’s control. The instructions requested were therefore rightly refused; and the instructions given afford no just ground of exception. Though not quite clearly expressed, they must fairly be understood to mean that, if the shying of the horse was occasioned by a vicious habit and was at an object which would not have startled a gentle and well broken horse, the plaintiff could not maintain the action; but that, if the object which caused the horse to step out of the travelled path was within the limits of the highway and would have caused an ordinarily gentle and well broken horse to do so, the fact that he so stepped out would not prevent the plaintiff from recovering against the town.

2. One mode of proving that a traveller was driving at an unusual, improper and unsafe rate of speed is by witnesses who saw him at or near the time and place in question. The distance of time and place in relation to which such evidence shall *56be admitted must to a considerable degree be left to the discre tian of the judge presiding at the trial; and we are not prepared to say that the exclusion. of evidence of the rate at which the plaintiff was driving half or three quarters of a mile before reaching the place of the accident would justify this court in setting aside the verdict. But to limit such testimony to witnesses who were looking at the driver at the very moment and spot of the accident would render it practically unavailable. And we are clearly of opinion that the testimony of a witness, wTho saw the plaintiff pass over the first part of the forty rods next before the spot where the accident happened, that he was then driving at the rate of ten miles an hour, was wrongly excluded. It directly tended to corroborate another witness, previously called by the defendants, who had testified that he saw the plaintiff driving at that rate for the whole of the forty rods next before reaching the place of the accident; and to prove the rate at which the plaintiff was driving within one eighth of a mile, or three quarters of a minute, before the accident; as well as to show that the testimony of the plaintiff’s son that the usual gait of the horse was not much more than half as fast was inaccurate, or, if that testimony was true, that either the horse or the driver was unusually excited upon this occasion. For the exclusion of this testimony, the exceptions must be sustained and a new trial had.

3. The defects in the condition of the highway, alleged in the declaration, were, first, an accumulation of ice upon the surface of the highway, leaving the travelled path too narrow, and, second, a want of suitable railing opposite. The extent to which ice may constitute a defect in a highway, for which a town shall be liable, has been defined and established by recent decisions. Mere slipperiness of surface of a highway properly constructed and of no unusual slope, whether occasioned by the ordinary action of rain, snow and frost, or by such travel as does not alter the form of the surface, is no more a defect in the highway, in the sense of the statute, than moisture or mud upon a flagstone or sidewalk. But if ice, by reason of constant or repeated flowing of water, trampling of passengers, or any other cause *57assumes such a shape as to form an obstacle to travel, the fact that it is also slippery does not make it the less a defect in the highway. Stanton v. Springfield, 12 Allen, 566. Hutchins v. Boston, 12 Allen, 571 note, and 97 Mass. 272 note. Johnson v. Lowell, 12 Allen, 572 note. Nason v. Boston, 14 Allen, 508. Luther v. Worcester, 97 Mass. 268.

There was evidence that the ice complained of in this case was formed from the water of a stream conducted through a trough into a tub for watering horses, and thence in part passing through a culvert under a highway and in part overflowing the road. Evidence as to the general shape and quantity of ice which was accustomed to be formed at the same place from the same cause was competent for the purpose of showing whether the accumulation of ice at the time of the accident was of such a character as to constitute a defect in the highway, but for no other purpose. The exact dimensions at any other time of a mass of ice which was admitted not to be the same which existed at the time of the accident was immaterial for any purpose, and incompetent to corroborate the plaintiff’s testimony, or to serve as a measure of the width of the residue of the road at the time of the accident. Upon the new trial, evidence of this character may be admitted under such restrictions and instructions as to confine it to its legitimate object.

4. The evidence that there was a stone in the mouth of the culvert, which caused the water to overflow the road, tended to show the effect of a stone in that position in producing an accumulation of ice in the highway, and was therefore admissible, in connection with evidence that the same or a similar stone was in the same position at the time of the accident, to show the cause and the character of the condition of the highway. Tb3 evidence introduced by the defendants that such a stone-had ueen removed since the accident would seem rather to support than to contradict the plaintiff’s theory, and certainly did not render the evidence introduced by him cn this point incompetent. Exceptions sustained.