Howard v. Mendon

• Decision Date: 22 June 1875
• Citation: 117 Mass. 585
• Parties: Daniel C. Howard v. Inhabitants of Mendon
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 585

Daniel C. Howard v. Inhabitants of Mendon

Supreme Court of Massachusetts

June 22, 1875

Argued October 1, 1874 [Syllabus Material] [Syllabus Material]

Worcester. Tort to recover for injuries sustained by reason of an alleged defect in a highway in the defendant town. Trial in the Superior Court, before Allen J., who allowed a bill of exception in substance as follows:

The plaintiff was driving in the evening of December 13, 1871 from Milford to Mendon, when his carriage struck a mound of earth and was upset, and the injury declared for sustained. Prior to June 6, 1870, a highway had existed from a point in Mendon to the line of Milford which the defendant town was before that time bound to keep in repair. On June 6, 1870, a petition was filed with the county commissioners setting forth that said highway, from said point in Mendon to a point in Milford, was in many places steep, difficult and inconvenient, and that the grade might be materially improved by a relocation and by the alteration of the location of said highway, and that public convenience and necessity required that said highway should be laid out anew, and altered so as to avoid the steepness of said grades. The petition prayed for such alterations, locations and specific repairs as public convenience and necessity require, and for discontinuance of such parts of the old road as said board may deem expedient. After due notice and hearing, the commissioners, on July 17, 1871, adjudicated "that public convenience and necessity require that the highway aforedescribed be located anew, with alterations;" and after due notice, on August 24, 1871, the commissioners "proceeded forthwith to locate anew with alterations." The description of the location was by metes, bounds and courses, and "said road throughout its whole extent is laid and located fifty feet in width on the easterly side of the metes and bounds aforesaid, and adjoining thereto," with certain additional widths for materials. The description further states that "said highway is relocated substantially over the old location as indicated by the fences and old walls. In some places it extends beyond the fences a few feet." The commissioners fixed the grade of said road, and that part of it which was in Mendon was graded either higher or lower than the grade of the old road at every point. The commissioners further ordered as follows: "And it is further ordered, that all roads crossing, intersecting or connecting with the road aforesaid be so graded by raising or lowering the same at their points of crossings, intersections and connections therewith as to render them safe and convenient for travellers passing thereon." After ordering that sixty days be allowed to owners of land over which the road is located, to remove wood, timber and fences, the order concludes as follows: "And it is further ordered, that the said road be worked and made hard and safe and convenient for travellers to pass over with their cattle, horses, teams, carts and carriages, and that it be made and completed by the said towns of Mendon and Milford, on or before July 1, 1872, to the acceptance of the county commissioners."

The defendant town let to contractors its part of the road to construct to the acceptance of the county commissioners, and said contractors sublet the entire job. Work was commenced on it on or about November 27, 1871. On the day work was commenced, or the following day, the original contractor placed across the road, at or near each end of the part of the road in Mendon, barriers as follows: At the west end, a bar post on the south side, and about ten feet north of it another bar post with two bars, which could be removed, extending between them, and from the north bar post two poles nailed into the post, and extending to the north side of the road. At the east end, a bar post was set at the north side of the road, and about ten feet south of it another bar post, with two removable bars extending between them, and from the south post two poles, nailed into the bar post, extended to the south side of the road. These fences and bars extended across the entire road. He also put up a sign at the west end, in plain sight of travellers, with the words conspicuously painted on it, "No passing over this road;" and about a half-mile east of the east end of that part of the road which was in Mendon, at the intersection of another road, in order that travellers might turn off, a sign exactly similar to the one above described, and both signs remained till after the accident.

The accident happened on that part of the road lying in Mendon within the location of the road as located anew, and within the location of the old road as shown by the fences. The mound which the carriage struck was a heap of earth placed there by the sub-contractor, with a stake set in it for a grade stake. The mound was in the wrought part, and in or near the wheel rut of the travelled part of the old road. At that point the grade was to be raised between three and four feet, and the lines of the location lay a few feet south of the lines of the old location, as shown by the fences, but the whole wrought part of the old road was within the new location. The filling had not been begun at that point, but the work of making the road was going on at other points nearer Mendon. The town of Milford had not begun to construct their part of said road. The evidence tended to show that when the accident happened the plaintiff was driving from Milford to Mendon about ten o'clock in the evening over said road; that he passed the...