Cushing v. Inhabitants of Bedford

• Decision Date: 17 October 1878
• Citation: 125 Mass. 526
• Parties: Ambrose M. Cushing v. Inhabitants of Bedford
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 526

Ambrose M. Cushing v. Inhabitants of Bedford

Supreme Court of Massachusetts

October 17, 1878

Middlesex. Tort. Writ dated July 1, 1875. The first count of the declaration was as follows: "And the plaintiff says there is in the town of Bedford a public highway, leading from said town of Bedford to the town of Lexington, which said defendant is bound to keep in repair; that the same was negligently suffered by the defendant to be out of repair whereby the plaintiff travelling thereon, and using due care was hurt. And the plaintiff says he was travelling on said highway in his buggy, with his wife, and was driving, in the exercise of due care, a quiet and safe horse; that at a certain place in said highway a water trough, painted of a brilliant color, had been placed, and placed in such a position that the road opposite said trough was made more narrow than it had been before said placing of said trough that as the horse approached said brilliantly painted trough, he sheered; that said horse in sheering drew said buggy upon a defect in said public highway, which defect was on that side of said highway which was opposite to said water trough; that said buggy was overturned by reason of said defect, and said plaintiff was thrown out and greatly injured thereby."

The second count was as follows: "And the plaintiff says the defendant negligently placed and allowed to remain for a long time, within the limits of a highway in said town of Bedford, a pump and water trough, painted of a bright red color, and of such a description that it was calculated to, and did, frighten horses travelling by the same upon said highway; that the plaintiff, with his wife, was travelling along said highway, and past said trough and pump, in his carriage, drawn by a quiet horse, and the plaintiff was using due care; that the plaintiff's horse was frightened by said pump and water trough, and sprang away from the same in such a manner as to overturn the plaintiff's carriage and greatly injure said plaintiff."

The answer admitted that the defendant was bound to keep the highway in repair; left the plaintiff to prove care on his part; denied that he was injured as alleged, and that the highway or any part thereof was out of repair, and that any structure was placed in the highway by the defendant, and that there was any combination of any structure and any imperfect condition of the highway to cause an obstruction or defect in the highway; and denied that by means of any such combination the plaintiff was hurt.

Trial in the Superior Court, before Wilkinson, J., who reported the case for the consideration of this court, in substance as follows: Under the first count of the declaration, the plaintiff offered evidence tending to show that there was a hole in the road into which his carriage entered, and by reason of which it was overturned. But it appeared that the horse was frightened by a watering trough on the side of the way, and sprang to one side of the road in his fright, and struck the defect while so shying. The plaintiff did not contend that the carriage would have struck the defect, had it not been for the shying of the horse from fright.

Under the second count, the plaintiff proved that at a regular meeting, under an article in the warrant, "To see if the town will raise money for the establishment and maintenance of public drinking troughs in the public highways," the defendant town voted, "That the selectmen be instructed to establish a public watering trough near the Lexington line, and that the expense does not exceed twenty-five dollars."

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