Arey v. City of Newton

• Decision Date: 01 March 1889
• Parties: AREY v. CITY OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 598

20 N.E. 327

AREY v. CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1889

The plaintiff requested the court to instruct the jury as follows:

COUNSEL

C.Q Tirrell and N.H. Pratt, for plaintiff.

W.S Slocum, for defendant.

OPINION

FIELD J.

The exceptions are to the refusal to give the two instructions requested. The first instruction requested was given substantially with the modification that if the post was an obstruction in the carriage-way, or was so near to the carriage-way as to make traveling on it unsafe, then it was a defect, and this we think is a correct statement of the law. In the present case the carriage-way was narrower than in Macomber v. Taunton, 100 Mass. 255, but this is the principal difference between the two cases. The narrowness of the part of the way wrought for carriage travel might have some bearing upon the question whether the post was so near to it as to make the carriage-way unsafe; but, if the post did not, under the circumstances, constitute a defect in the way intended for carriage travel, the plaintiff could not recover.

The exceptions state that the ordinances had been duly passed and that the penalties attached to them were lawful. Mr. Woodward had therefore no right to drive his wagon upon the sidewalk. If he intentionally and unnecessarily had driven it on the sidewalk, and this was a contributing cause of the injury, the plaintiff could not recover, because the defendant is not liable if the unlawful or negligent act of a third person contributed to the injury. Newcomb v. Protective Department, 146 Mass. 596, 16 N.E. 555; Tuttle v. Lawrence, 119 Mass. 276; Rowell v. Lowell, 7 Gray, 100; Shepherd v. Chelsea, 4 Allen, 113.

The second request assumes that the traveled part of the way was not of sufficient width to allow the safe passage of Mr Woodward's wagon by Mr. Dow's, while the evidence did not support the assumption, if the words are taken literally. The request was material only in case the jury should find that the post rendered the part of the way wrought for carriage travel unsafe. Undoubtedly, a person driving in a wagon on a dark night, and attempting to to pass another wagon driven in the same direction, is more likely to go beyond the limits of the traveled way, if it is only 161/2 feet wide, than if it is twice that width; still a traveler cannot justify driving upon a sidewalk in violation of...