Carey v. Town of Hubbardston

• Decision Date: 20 October 1898
• Citation: 51 N.E. 521,172 Mass. 106
• Parties: CAREY v. TOWN OF HUBBARDSTON. CUNNINGHAM v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 106

51 N.E. 521

CAREY

v.TOWN OF HUBBARDSTON.

CUNNINGHAM

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 20, 1898.

Exceptions from superior court, Worcester county; John Hopkins, Judge.

Two actions by Eliza J. Carey and Maria Cunningham, respectively, against the town of Hubbardston, for personal injuries received August 27, 1895, through a defective highway in said town, the defect consisting of a projecting stone. There was a verdict for defendant in each case, and plaintiff reserved exceptions. Overruled.

A photograph of the locality of the injury, which did not show the stone, having been introduced, plaintiffs offered another photograph, which showed the location in question, including the traveled part of the way, and the stone, but not the grass and weeds around it. This photograph was excluded, and plaintiffs excepted.

C.F. Baker and W.P. Hall, for plaintiffs.

F.W. Blackmer and E.H. Vaughan, for defendant.

HAMMOND, J.

1. The question whether the photograph was properly verified, and also whether it was practically instructive to the jury, was to be determined by the presiding judge under the circumstances. Blair v. Pelham, 118 Mass. 420;Verran v. Baird, 150 Mass. 141, 22 N.E. 630. One photograph had been already introduced, and, although it did not show the appearance of the stone, the judge may have thought that the second photograph, which it was conceded did not show the actual condition of the grass and weeds at the time of the accident, would be misleading, rather than helpful. We see no ground for holding that there was error in excluding it.

[172 Mass. 108]2. After stating that it was the duty of the defendant to keep the way reasonably safe and convenient for travelers, and to “work sufficient width” for that purpose, the presiding judge submitted to the jury, under instructions to which no exception was taken, the questions whether a sufficient width was worked, whether the stone was a defect, and whether there was negligence on the part of the defendant in allowing it to be there, or in allowing the grass and weeds to grow around it. He then defined the degree of care required of the plaintiff, and used this language: “Now, Mr. Foreman and gentlemen, under those circumstances, is it a proper thing to do to drive off the traveled part of the way upon that grass? Would that be due care? If so, she was exercising due care. If it is not due care, she would not be exercising due care, and it would bar her from recovery.” Then follows that part of the charge to which exception is taken, as follows: “If Mrs. Cunningham knowingly drove out of that portion of the way prepared for travel without...