Maggi v. Cutts

• Decision Date: 05 January 1878
• Parties: Joseph Maggi v. Benjamin Cutts
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 535

Joseph Maggi v. Benjamin Cutts

Supreme Court of Massachusetts

January 5, 1878

Argued November 10, 1877

Essex. Tort for personal injuries alleged to have been sustained by an obstruction in the highway, placed there by the defendant. Trial in this court, before Ames, J., who allowed the following bill of exceptions:

"It appeared in evidence in this case, that on the evening of November 19, 1875, at about half past six o'clock, the plaintiff was riding in a wagon through Sewall Street, which for the purpose of this case, was admitted to be a public way in Salem, and which was about twenty or twenty-one feet wide and there fell or was thrown from his wagon and received the injuries for which he seeks to recover damages.

"For a few days previous to this accident, and upon said November 19, the defendant, whose blacksmith shop was upon Sewall Street, had been making an excavation for a cellar under his building, and had thrown the dirt, gravel and loam therefrom into the street, and at the time above named there was a pile of such gravel or loam standing in the street about two and a half feet high, extending about ten feet along the street and from a third to half the distance across the street, the exact dimensions of the pile being in dispute.

"It was contended by the plaintiff, and he introduced evidence to show, that, not observing the obstacle, and using due care, he had driven his horse upon the pile aforesaid so far that the forward wheels touched or went into it; that the horse had fallen upon the pile and the plaintiff was thus thrown violently upon the ground; that the horse was helped upon his feet and stood quietly till the plaintiff was put into the wagon.

"In the course of the trial, the plaintiff, in putting in his case, called witnesses who testified, among other things, that the plaintiff had owned the horse, which he was driving, two years, that the horse was a good driving horse, that he was a good, kind and clever horse, and had no vices; on cross-examination the plaintiff testified that when he first bought him he showed some signs of being a kicking horse, and did in fact kick upon one or two occasions, and that he was then placed for a few days in the hands of one Currier, who was accustomed to horses; and Currier testified that he showed some indications, by whisking his tail and otherwise, that he was a kicking horse, and that he kicked once while with him; but that after driving him he did not think he was a kicking horse, and that he tried him for about a month in order to ascertain.

"Dominick Maggi, a witness for the plaintiff, who testified on the examination in chief as to the good character of the horse, upon cross-examination testified that on one occasion, subsequent to the accident, the horse, which was then harnessed in a pung or sleigh, whisked his tail, had gone round, had stopped more than once, and that he found the horse had got his leg over the shaft, and that after the shaft was put into its proper place he had no further difficulty.

"The defendant denied the truth of the plaintiff's account of the manner in which the accident had occurred, and introduced evidence tending to show that neither the plaintiff nor the wagon touched the pile of dirt at all; and, as one mode of accounting for the accident, contended that the horse might have stumbled or fallen, or stopped suddenly, without reference to the pile of dirt.

"There was no evidence tending to show that the horse at the time of the accident baulked or stumbled, or became unmanageable or contrary, or that the accident was caused by any vice, fault or defect on the part of the horse, or that any such vice, fault or defect contributed to the accident; but on the contrary it appeared that immediately after the accident he was perfectly quiet and controllable.

"In this connection, and for the purpose of controlling the plaintiff's testimony as to the character of the horse, and for the purpose of showing generally that the horse was vicious and unsafe at the time of the accident, and was known to be such by the plaintiff, the defendant offered evidence of one Teague, who testified that, just before Thanksgiving time in 1875, he had seen the horse fall at the corner of North Street, in Salem; and of one Williams, who testified that in August, 1875, he had seen the horse kicking; he then offered to prove instances of the horse's kicking and stumbling since the accident, and also that the horse baulked, that he had several times behaved in a vicious, unruly and restive manner, and had bolted in the street.

"All evidence of this description referring to any time before the accident was admitted, but the evidence of all such acts as were subsequent to the date of the accident the presiding judge refused to admit."

The jury returned a verdict for the plaintiff for $ 7608.33; and the defendant alleged exceptions.

Exceptions sustained.

W. D. Northend & J. A. Gillis, for the defendant.

S. B. Ives, Jr. & L. S. Tuckerman, for the plaintiff.

Lord, J. Morton & Soule, JJ., absent.

OPINION

Lord, J.

The fact that a horse driven by the plaintiff misbehaved at the time an...