Powers v. City of Boston
| Decision Date | 22 May 1891 |
| Citation | 27 N.E. 995,154 Mass. 60 |
| Parties | POWERS v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Allen, Long & Hemenway and Chas. S. Knowles, for plaintiff.
W.S.B Hopkins, Chas. T. Davis, Jas. D. Colt, and Frank B. Smith for defendant.
This is an action to recover damages for personal injuries alleged to have been caused by a defect in a highway. The plaintiff was a conductor of a horse-car, and at the time of the accident was standing on the running-board of an open car, collecting fares, when he was knocked off and injured by being carried against a post planted in the highway within two inches of the edge of the running board. The post was part of a barrier which had been put up as a guard where the street had caved in because of an excavation for a new building at the corner of Court street and Washington street.
On the question whether the barrier was a defect, the jury were instructed, in substance, that if the barrier as it stood was reasonably necessary to protect the public at the time of the accident, and if its position was indicated by sufficient lights, it was not a defect, no matter how near it came to the railroad track; but that if it was not necessary, if it was carried too far into the street, if it was constructed so as to be a danger to public travel rather than a safeguard, the jury might find it to be a defect; or, if the danger had been ended long enough reasonably to have enabled the posts to be removed, then it was a defect. These instructions are not much questioned as abstract propositions, and, in our opinion, they were correct. It is true that, under the circumstances supposed, the barrier might not be a defect as towards people traveling on foot or in carriages, and that it might be one relatively to the horse-cars only by reason of its nearness to the track and their inability to turn out. But it is not necessary that a matter complained of should endanger all modes of public travel in order to be a defect. It is enough that it makes any mode dangerous which the public have a right to use. The ground is not that horse-cars have greater rights than the public at large, but that travel by means of the horse-cars is one of the rights of the public at large. See Gregory v Adams, 14 Gray, 242, 247; Arey v. City of Newton, 148 Mass. 598, 20 N.E. 327.
It is objected, however, that the instructions given allowed the jury to find that there had been such a change as to make it proper to remove the barrier, whereas, in fact, there was no such evidence. The question turns on the meaning of a witness, the inspector of buildings, in testifying that on Saturday morning the danger from the caving in had ceased, (the accident having happened Saturday evening.) It was left to the jury to say whether he meant that the danger to the public had ceased because the posts had been put in as a protection against it, or because the danger of a further caving in of the street was over, so that the barrier was no longer necessary. Whatever we might have thought if all the language used by this witness had occurred in a written deposition, we cannot say that his words may not have admitted of two interpretations by those who heard them, and therefore we find no error here.
An exception is taken to leaving the question of the plaintiff's negligence to the jury. So far as the ruling requested rested upon the plaintiff's knowledge, it is to be observed that, while he admitted that he had a general idea that there were some obstructions there, he said that he did not know that they were as near to the car or as dangerous as they were. No doubt, if a man voluntarily runs into a danger which he fully appreciates, generally speaking he cannot recover for it, and it is rather a question of words than of substance whether he shall be called negligent or shall be said to have taken the risk. Miner v. Railroad Co., 26 N.E. 994, (March, 1891.) But a man does not take the risk of every danger which may arise from certain causes, merely because in a general way he is aware of the existence of those causes. Thomas v. Telegraph Co., 100 Mass. 156, 158; Barton v. Springfield, 110 Mass. 131; Dewire v. Bailey, 131 Mass. 169; Lawless v. Railroad Co., 136 Mass. 1, 5; Ferren v. Railroad Co., 143 Mass. 197, 199, 9 N.E. 608; Kelly v. Blackstone, 147 Mass. 448, 451, 18 N.E. 217.
So far as the request for a ruling that the plaintiff...
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