Bbooks v. Inhabitants of Acton

• Decision Date: 26 February 1875
• Citation: Bbooks v. Inhabitants of Acton, 117 Mass. 204 (Mass. 1875)
• Parties: Henry Bbooks v. Inhabitants of Acton
• Court: Supreme Judicial Court of Massachusetts

117 Mass. 204

Henry Bbooks v. Inhabitants of Acton

Supreme Court of Massachusetts

February 26, 1875

[Syllabus Material] [Syllabus Material]

Middlesex. Tort to recover for personal injuries alleged to have been caused by a defect in a highway in the defendant town.

At the trial in the Superior Court, before Bacon, J., it was admitted that the defendant was bound to keep the highway in repair. The plaintiff put in evidence tending to show that on the evening of February 15, 1873, while travelling with a horse and sleigh along the highway, a defect therein, where it crossed a railroad at grade, caused his horse to jump and run up a hill, when the plaintiff, to save his life, the horse being beyond his control, attempted to guide the horse up a steep bank to stop him, and, in so doing, the horse turned out of the travelled part of the highway and ran upon a post some two feet therefrom, and the plaintiff was thereby injured.

It appeared that the travelled part of the highway was formed of ice and snow frozen and trodden down, and that there was but a single track. The plaintiff's evidence tended to show that there was a short and abrupt pitch in the travelled part of the highway from the top of the snow to the railroad track, from twelve to eighteen inches. The defendant's evidence tended to prove the contrary, and that the travelled part of the highway at the railroad crossing was a slight and gradual descent, and was safe and convenient for travellers passing over it. It was admitted that the highway at the railroad crossing had remained in the condition it was at the time of the accident for more than twenty-four hours.

The defendant put in the testimony of several witnesses as to the state of the weather and the snow-storms during the winter which was stated in the bill of exceptions at length; and the road-master of the railroad, called by the defendant, testified that in snow-storms the track was cleared by a snow-plough run at about twenty miles an hour, which threw the snow each side of the track, taking it off down to the rails about four and a half feet in width, and throwing and scattering it over a distance of about twelve feet; but he could not tell how many snow-storms there had been, or how much snow had fallen, or its depth at any time.

The plaintiff offered the evidence of a witness who measured the depth of the snow in the woods in the neighborhood of the crossing on the morning of February 15, 1873, and offered to prove by him that the snow then and there measured two feet deep on a level; but the judge ruled that the evidence was incompetent, and refused to admit it. No measurements of the depth of the snow and ice were made other than this, but the judge allowed witness on each side to testify as to their estimate of the depth of the snow in the location of the way near the place of the accident at the time of the accident, and the several witnesses estimated it, varying from five inches to a foot in depth.

There was evidence tending to show that the plaintiff first had the horse February 8, 1873; that he got him to work in a treadmill, and that the horse was sent to him by one Bond, who testified as a witness for the plaintiff. There was evidence tending to show that the horse had run away with the plaintiff on one or two occasions before the night of the accident, and that on that night the horse had run away and was out of the control of the plaintiff long before he got to the railroad crossing; but the evidence was conflicting on these points, and the plaintiff testified that he had, before the accident, used the horse with a sleigh and on his tread-mill, and the horse never had run away before and he believed him safe.

On the question of due care, the plaintiff offered in evidence the following letter from Bond to him, which he read on February 8, 1873: "In regard to the horse you wanted I should send to you, I have traded for a good horse for your business and I think he will suit you, and so I shall put him aboard of the cars tomorrow morning, and you can look out for him when he gets there; he is all gentle, nothing to fear. I will see you in a few days," The judge refused to admit the letter.

The plaintiff called Bond, of whom he had the horse, who testified to the safety of the horse as far as he knew. The defendant asked him if he had not refused to tell the defendant's agents where the horse was, the witness answered "No." The defendant then called one Billings, chairman of the selectmen of Acton, who testified that in November, after the accident, he met Bond and inquired of him where the horse was. The plaintiff objected to the answering of the question by Billings, but the judge, against the plaintiff's objection, permitted him to answer, and he did answer as follows: "He said he is about here, and has done no mischief since."

The defendant introduced as a witness one Wheeler, who stated that there was no pitch at the crossing and that it was smooth there, that he was often over it up to the time of the accident. On cross-examination, he was asked if he had not said he would spend his last dollar to beat the plaintiff in this case, and answered "Yes." The defendant then asked him the reason for saying this, and against the plaintiff's objection he was permitted to testify, and did testify, that the reason was because he thought the plaintiff had no claim against the town and ought not to recover anything.

The defendant contended that there was no defect, and that the accident was caused by the want of care of the plaintiff, by the viciousness of the horse, and that if there was a defect, the horse was running away and out of the control of the plaintiff before he reached the defect.

The judge, among other things, instructed the jury as follows: If the vice of the horse caused the running or contributed to the running, the plaintiff cannot recover, although the vice was unknown to the plaintiff, and although he used due and reasonable care in obtaining and managing the horse.

The case was committed to the jury on Friday afternoon, ...