Cutting v. Inhabitants of Shelburne

• Decision Date: 16 October 1906
• Citation: 78 N.E. 752,193 Mass. 1
• Parties: CUTTING v. INHABITANTS OF SHELBURNE (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 1

78 N.E. 752

CUTTING v. INHABITANTS OF SHELBURNE (two cases).

Supreme Judicial Court of Massachusetts, Franklin.

October 16, 1906

COUNSEL

Samuel [193 Mass. 3] D. Conant, for plaintiffs.

Dana Malone, for defendant.

OPINION

BRALEY J.

A refusal to rule at the close of the evidence that these actions could could not be maintained raises the questions of law presented by the exceptions. They are, whether the plaintiffs' injuries were caused by want of a sufficient railing upon the bridge which formed part of the highway thus causing a defect which might have been remedied by reasonable diligence on the part of the defendant, and whether at the time of the accident they were in the exercise of due care.

In speaking of this obligation imposed upon towns, Mr. Justice Ames, in Marshall v. Ipswich, 110 Mass. 522, 526 said, 'The purpose of such railings is to make the way itself safe and proper for use. They are required in the case of bridges, embankments or causeways, and generally where excavations, deep water, etc., are so near to the line of public travel as to expose travelers to unusual hazards.'

It is sufficient to say that upon this question, which was an issue of fact, the jury could find that the highway originally laid out in 1784, and relocated in 1826, had become defective because of the absence of a sufficient railing, which if erected and maintained, would have rendered this part of the road safe and convenient for the use of travelers, and prevented the accident. Lyman v. Amherst, 107 Mass 339; Harris v. Newbury, 128 Mass. 321; Tisdale v. Bridgewater, 167 Mass. 248, 45 N.E. 730; Harris v. Great Barrington, 169 Mass. 273, 47 N.E. 881.

This defective condition was well known to the husband who acted as driver, but neither such knowledge, nor the opportunity for immediate observation which was afforded as the carriage approached the bridge, are conclusive upon the question of contributory negligence, but such knowledge and opportunity are to be treated rather as circumstances to be considered by the jury with the other testimony bearing upon this issue. We refer only to a few of the more recent decisions. Powers v. Boston, 154 Mass. 60, 63, 27 N.E. 995; McGuinness v. Worcester, 160 Mass. 272, 273, 35 N.E. 1068, and cases cited; St. Germain v. Fall River, 177 Mass. 550, 59 N.E. 447; Torphy v. Fall River, 188 Mass. 310, 74 N.E. 465; Campbell b. Boston, 189 Mass. 7, 10, 75 N.E. 96; Hennessey v. Taylor, 189 Mass. 583, 586, 76 N.E. 224. See, also, Urquhart v. Smith & Anthony Co., 191 Mass. 257, 78 N.E. 410.

The further important fact that the horse was blind also comes within this division. for how far loss of sight may have rendered him unmanageable, or contributed to the accident, depended largely upon the weight to be given to the evidence, when viewed in the light of common experience, that notwithstanding this infirmity he could be used and driven with safety. Brackenridge v. Fitchburg, 145 Mass. 160, 13 N.E. 457; Smith v. Wildes, 143 Mass. 556, 10 N.E. 446.

If the inference either of care or of negligence which might have been drawn from this portion of the evidence was solely for the jury, nothing further remains upon which the defendant's argument can rest, except the conduct of the driver in the management of the horse. The degree of care and skill with which a horse is being...