172 Mass. 407 | Mass. | 1899
These are actions to recover for injuries to person and property caused by an alleged defect in the highway. The way in question was Main Street in Wenham. There was evidence that it was a highway by prescription, but its width did not appear unless by presumption, and it was admitted by the plaintiffs that the road did not extend to the fences on the sides. Beside the point where the accident happened was a muddy place with standing water, and travel had turned to the easterly side of the road over the grass to such an extent that a strip three or four feet wide was worn bare, and looked like the rest of the road. At the time of the accident this strip came up to within an inch of the stump of a pole, about ten inches high and six and a quarter inches in diameter, which was hidden by the grass that remained. The plaintiffs Mrs. North and Mrs. Tilton were driving along the road in a southerly direction, and upon coming to the muddy place turned to the left over the above mentioned strip from which the grass had disappeared. In some way or other the left wheel of their vehicle struck the concealed stump, Mrs. North, who was driving, was thrown out, the horse ran away and brought the wagon against a trolley pole, and Mrs. Tilton was thrown out in her turn. We believe that this is a sufficient statement of the plaintiffs’ case. The judge directed a verdict for the defendant, and the plaintiffs excepted.
The ruling is supported by an argument that it does not appear that the driver was using due care. But the evidence warranted a finding that Mrs. North was driving quietly along, and that the first trouble was caused by striking the concealed stump. We see no ground whatever for the suggestion that this is only conjecture, and that the horse may have been running away before the stump was reached.
The real question is whether there was evidence that the town was responsible for the defect. If the stump was outside the limits of the highway and of the way that was travelled, the case of Marshall v. Ipswich, 110 Mass. 522, points to the conclusion that the town was not bound to build a fence for the protection of
If, then, the jury might have found that the stump was within the limits of the highway, the case should not have been taken from them. The only evidence was that the highway was ancient, and it was admitted, as we have said, that it did not extend to the fences. But the case of an ancient highway is somewhat different from that of a private way or other private easement by prescription, where the suggestion of a lost grant is a pure fiction having a well known historical explanation. In the case of an important public way there is a real working probability that it has been sanctioned by some public action, even though no record of such action is produced. The offer of evidence of which we shall have to speak indicates that there was
In view of our decision upon the main question the two exceptions to the exclusion of evidence become unimportant. The plaintiffs offered to prove that the stump was cut off after the accident, by order of the board of selectmen. The offer now is justified as evidence that the town exercised authority over the place as part of the highway; but when the evidence was offered and rejected, it probably was understood by everybody, unless the plaintiffs’ counsel is to be excepted, to be offered as evidence of an admission by subsequent conduct. The plaintiffs also offered to prove that the highway did not run where the actual legal location would take it, by an engineer who had tried to fix the east line of Main Street from what was said to be a copy of the location. But the copy was not proved to be a correct copy. We hardly should have sustained these exceptions; — but at another trial the questions raised are not likely to be important.
Exceptions sustained.
