Harris v. Inhabitants of Great Barrington

• Decision Date: 20 October 1897
• Citation: 169 Mass. 271,47 N.E. 881
• Parties: HARRIS v. INHABITANTS OF GREAT BARRINGTON. KILBOURNE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 271

47 N.E. 881

HARRIS

v.INHABITANTS OF GREAT BARRINGTON.

KILBOURNE

v.SAME.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 20, 1897.

Report from superior court, Berkshire county; Robert R. Bishop, Judge.

Actions, one by George E. Harris, the other by Elizabeth W. Kilbourne, against the inhabitants of Great Barrington. Verdicts for plaintiffs, and the cases are reported. Judgment on the verdicts.

Crosby & Noxon, for plaintiffs.

H.C. Joyner and A.C. Collins, for defendants.

FIELD, C.J.

These two cases come before us, after verdicts for the plaintiffs, on the report of the justice presiding at the trial. A plan and photographs of the place of the accident were submitted to the jury, and produced before us at the argument, and all the material evidence on the question of the liability of the defendant town was reported. The report states the case as it appeared from the evidence, as follows: “These are actions of tort, to recover damages for personal injuries to the plaintiffs while driving upon a highway in the town of Great Barrington on November 2, 1896. Both cases were tried with a jury. The jury took a view of the highway where the accident took place. It was admitted that the highway was a public highway, for the condition of which the defendants were responsible, and that the defendants received due notice of the time, place, and cause of the injuries. The pleadings may be referred to. On the trial the testimony of both plaintiffs and defendants showed, and it is admitted, that on the 2d day of November, 1896, between two and three o'clock in the afternoon, the plaintiffs, who are brother and sister, were driving together from their home in the adjoining town of Egremont to the village of Great Barrington. They were in a market wagon, were carrying a barrel of apples, and were driving a single horse. While driving upon a portion of the highway which was perfectly smooth and free from stones or obstructions, the plaintiff Harris, who was driving, heard a team coming behind him, and looked back to see who it was. He then turned to the right side of the traveled part of the highway to let it pass, and while driving on said right side his horse suddenly went off into the ditch. The plaintiff Harris was thrown out on the right-hand side of the wagon, and was injured; and Mrs. Kilbourne tried to jump out on the left side of the wagon, and struck on her feet and knees, and was injured. The wagon was not upset, but the plaintiff, seeing it was likely to upset, turned his horse short across the ditch, and the horse stopped after going into the ditch. The highway where the accident occurred is one that has a large amount of travel upon it. The plaintiffs were perfectly familiar with it, and had often driven over it. The evidence of the plaintiffs was that the horse was a gentle and proper animal, and there was no evidence to the contrary. The plaintiffs introduced evidence tending to show that at the place of the accident the road, as constructed, was 17.8 feet wide from shoulder to shoulder, and that deep ditches descended from the sides at an angle of about 45 deg.; that the depth of the ditch on the side where the accident occurred was 3 1/4 feet from the highest point of the roadbed; that the traveled part of the roadbed came within a few inches of the shoulders of the road, where the ditches began; and that there was no railing,-and claimed that the narrow roadway, deep ditch, with a sharp descent near to the traveled way, without railing or guard, constituted a defect which due care on the part of the town should have prevented, and that the town could have prevented the same by making the slope of the bank more gradual, or by a railing. The width of the highway between fences was 59 feet. The...