Hawks v. Northampton

• Decision Date: 20 September 1876
• Parties: Joseph Hawks v. Inhabitants of Northampton
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 10

Joseph Hawks v. Inhabitants of Northampton

Supreme Court of Massachusetts

September 20, 1876

Hampshire. Tort for a personal injury sustained by reason of an alleged defect in a highway in the defendant town. After the former decision, reported 116 Mass. 420, the case was tried in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows:

The alleged defect was a loose or improperly laid guard rail of a street railway in Main Street, Northampton, which was laid for the distance of about one hundred feet inside of and near the outer or main rail, to prevent cars, when rounding a curve, from running off the tracks.

The evidence tended to show that, while the plaintiff was driving a pair of horses with a wagon across the track of the railway, in the daytime, his right fore wheel came in contact with the end of the guard rail, lifting it up and becoming locked in with it; that the wagon was suddenly stopped, the horses cleared themselves from it, and the plaintiff was thrown over the dasher upon the ground, and injured; that the guard rail was insufficiently fastened, and had become loose and that the end of it, in which the wheels caught, had sprung upward and above the level of the outer rail.

The defendant offered evidence tending to show that the plaintiff was not driving with due care when the accident happened that he was driving fast, and that he attempted to cross the road at so acute an angle with the rails that his right fore wheel would not go over the right hand rail, but scraped against it, and ploughed up a furrow inside and along that rail, for a distance of some twenty-five or thirty feet, when it came in contact with the end of the guard rail, and caught in the narrow groove between the guard rail and main rail, in which the flange of the car wheel was accustomed to run, and tore up from its fastenings the end of the guard rail. The plaintiff testified that he drove across the rail in the usual track, as designated by the tracks on the ground squarely and holding his reins carefully; that he could not tell how fast he was driving, but presumed he was on a trot was driving just as he would anywhere; that his horses were kind and manageable, his wagon and harness sound and strong; and that he did not know of the existence of the defect. On cross-examination, he testified as follows: "I presume I knew there was a track there. I knew there...