Harris v. Inhabitants of Newbury

• Decision Date: 27 February 1880
• Citation: Harris v. Inhabitants of Newbury, 128 Mass. 321 (Mass. 1880)
• Parties: Daniel M. Harris v. Inhabitants of Newbury
• Court: Supreme Judicial Court of Massachusetts

128 Mass. 321

Daniel M. Harris v. Inhabitants of Newbury

Supreme Court of Massachusetts

February 27, 1880

Argued November 6, 1879 [Syllabus Material]

Essex. Tort for injuries occasioned to the plaintiff's person and carriage by a defect in a highway in the defendant town. Writ dated January 29, 1879. Answer: 1. A general denial. 2. That the defendant did not receive a sufficient notice of the plaintiff's injury, as required by law.

At the trial in the Superior Court, before Bacon, J., it appeared in evidence that, on January 2, 1879, the plaintiff and his son who were travelling in a light buggy from Stratham, New Hampshire, to Salem in this Commonwealth, arrived in the defendant town about a quarter of an hour before sunset on that day; that there was a thick snow-storm at the time, the snow having then fallen to a depth of from six to eight inches; that it was so dark that, as the plaintiff testified while they could see the walls on either side of the road they could not see one hundred feet ahead; and that the place of the accident was at Brown's Hill, in Newbury, at a spot where the road branches, the travelled road leading to the left, and an old road leading nearly straight on to the right.

The plaintiff's evidence further showed that, when he came near to the fork of the roads, which was about half-way down the hill, he was in doubt which was the true road, as both roads looked alike, each being smoothly covered with snow, and no sign-boards or carriage-tracks being visible; and that, while thus in doubt, walking his horse slowly, and keeping as near as he could midway between the walls on either side of the road, and trying to discover some indication of the true road, the left wheels of his buggy suddenly sunk down into a gully, and the buggy was overturned and broken, and his person injured, the horse remaining standing on the bank.

The left hand or new road, which the defendant admitted to be a way which the town was bound to support, had a descent of about one foot in twenty; while the right hand or old road, the location of which it denied to be a road which the town was bound to keep in repair, ran along upon the side of a hill at about the same level with the fork of the two roads. The difference in the level of the two roads at the place of the accident was about two feet. The travelled portion of the new road was graded, at a point opposite the place of the accident and ten feet distant from it, about six inches above a gutter which ran alongside of the road, and was formed by the grading of the road on one side of it and by the sloping bank on the other. The graded portions of the two roads near the place of the accident were about eight feet apart. From the bottom of the gutter to the grade of the old road at the place of the accident, the sloping bank was about two feet in height, varying from nothing at the point where the new road diverged from the old, and increasing to two and a half feet a little beyond the place of the accident. No claim was made that the travelled part of the way of either road was not of sufficient width, or was of improper construction, or was out of repair.

The defendant admitted that the spot where the accident occurred was within the located limits of the new way. It was also in evidence, that the old way was formerly the old county road leading to Rowley, and had never been closed to the public by bars, signs or notices of any kind since the new way was laid out and opened for travel in 1847, but was at the time of the accident still open for travel, and was occasionally so used. But, at the trial, it was agreed that it was immaterial whether the old way had been discontinued or not.

To show notice of the accident to the defendant, the plaintiff put in the following letter from his attorney to the defendant's selectmen, dated January 3, 1879: "Mr. D. M. Harris of Salem has desired me to inform you that he yesterday received serious damage to himself and carriage while riding over one of your roads from Newburyport to this place, owing to a defect in the highway for which he holds your town responsible." And the plaintiff's son testified that, on the morning after the accident, he went to one of the defendant's selectmen, and, for and, in behalf of his father, took the selectman to the place of the accident and told him all about it. The plaintiff testified that, when his son came home at night and reported what he had done in thus notifying the selectmen, he assented to it.

The defendant asked the judge to rule as follows: "1. There is no evidence that the injuries for...