Flagg v. Town of Hudson

• Citation: 8 N.E. 42,142 Mass. 280
• Parties: FLAGG v. TOWN OF HUDSON.
• Decision Date: 03 July 1886
• Court: United States State Supreme Judicial Court of Massachusetts

142 Mass. 280

8 N.E. 42

FLAGG v. TOWN OF HUDSON.

Supreme Judicial Court of Massachusetts, Middlesex.

July 3, 1886

This was an action of tort, in which the plaintiff sought to recover damages for personal injuries sustained by reason of an alleged defect in a highway in defendant town. Trial in the superior court, before BRIGHAM, C.J., where there was evidence that the plaintiff was driving along the highway in question on April 27, 1883, in company with her husband, when she was thrown from her carriage and injured that the surface of the constructed roadway was level, and from 111/2 to 12 feet wide between the shoulders of the roadway on each side at the place where the accident occurred, and for some little distance both ways; that on the westerly side the way sloped off gradually to a wall eight or ten feet distant, and grassed over to the wall, on which a carriage could turn out. On the easterly side the easterly wheel-track extended along by the side of and within about a foot of the easterly line of the easterly shoulder of the way, and on that side, from the shoulder, the slope down was at an angle of about 45 deg., about as steep as gravel would stand, and the ground at the bottom of the slope was from one foot and six inches to two feet perpendicularly below the surface of the way. There was no fence or railing on the easterly side of the way, but bushes from six to ten feet high stood by the side of, and somewhat projected over, the easterly edge of the way; that the plaintiff and her husband while driving along near where the accident occurred, saw a team approaching; the husband of plaintiff pulled the horse up, turning him out; the buggy tipped, and the husband jumped out. The plaintiff testified as follows:

"I and my husband were riding towards home. My husband was sitting on the right-hand side of the buggy, and was driving slowly. It was quite dark, and we were talking. I heard a team coming, and said to my husband, 'Turn out.' He turned out; the buggy tipped to the right, and, as it tipped I threw out my hand to catch hold of his coat to save falling, and the hack struck us."

It appeared in evidence that the horse and buggy did not go down the side of the way, tip over, or strike against anything on that side after the first tipping, when the plaintiff's husband jumped out; and the injuries to the plaintiff came either from her falling upon her husband after the latter jumped out when the buggy tipped, or from the collision of the buggy with the hack. At the time of the collision, the left or nigh forward wheel of the hack had passed, going to the right of the middle of the traveled path westerly of the path or track made by the horses, and the left or nigh hind wheel of the hack had reached a point between the easterly wheel-track and the horse-track. The plaintiff at the trial claimed that the defect in the road was the absence of a railing, and that the want of the railing was the sole cause of the injuries. The defendant contended that the alleged defect was not the cause of the injuries, and that, had a railing existed at that place, the buggy would have struck against the hack had it avoided the railing, and furthermore that the plaintiff was not in the exercise of due care, by herself and her husband. The defendant asked for certain instructions which the court refused to give, the jury found for the plaintiff, and the defendant alleged exceptions.

COUNSEL

C. Robinson and J.T. Joslin, for defendant.

W.B. Gale, S.W. Trowbridge, and J.W. McDonald, for plaintiff.

OPINION

FIELD J.

Whether the plaintiff or the plaintiff's husband was in the exercise of due care was for the jury to determine. The defendant contends that the evidence failed to show that the injury was caused solely by a defect in the way, and was insufficient to warrant a verdict for the plaintiff; that the real cause of the injury was the collision; that the third and fourth instructions requested should have been given; and that the instructions given were not substantially the same in meaning as those requested.

We think there was evidence for the jury that the injury was caused solely by the tipping of the...