Mcmahon v. Inhabitants of Town of Harvard

• Decision Date: 15 October 1912
• Citation: 213 Mass. 20,99 N.E. 458
• Parties: McMAHON v. INHABITANTS OF TOWN OF HARVARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 20

99 N.E. 458

McMAHON v. INHABITANTS OF TOWN OF HARVARD.

Supreme Judicial Court of Massachusetts, Worcester.

October 15, 1912

COUNSEL

Geo E. O'Toole and John H. O'Brien, both of Clinton, for plaintiff.

Warren H. Atwood, of Ayer, for defendant.

OPINION

DE COURCY, J.

This is an action under R. L. c. 51, § 18, to recover damages for injuries to the plaintiff's horse caused by the alleged negligence of the defendant in failing to maintain a sufficient railing along one of its public ways.

The plaintiff was driving a pair of horses, hitched to an empty wagon, on the righthand side of Fairbanks street, and having turned aside to allow another team to pass, he stopped for a few moments. His wagon was then about two feet from the side of the way. At that point the adjoining land was 2 1/2 feet below the level of street, and a one-rail fence on top of a stone wall was maintained there by the defendant. After the team started again the plaintiff's horses had taken but two or three steps when the pole hit the right-hand horse and threw him off his balance; he staggered against the railing the rail broke, and the horse's right hind leg went over the wall. One witness testified that the horse appeared to be frightened, and that his leg did not strike the rail with any great force.

There was ample evidence for the jury of the plaintiff's due care; of the necessity of a railing for safe and convenient travel upon Fairbanks street at the place of the accident and of the defective condition of the railing maintained there. It was also for the jury upon the evidence to say whether this condition was known, or by the exercise of reasonable care and diligence would have been known by the proper officers of the town; whether the plaintiff's loss of control of his horse, if any, was merely momentary; and whether the injury would have been prevented if the railing had been in proper condition. Coles v. Revere, 181 Mass. 175, 63 N.E. 430; Thompson v. Boston, 212 Mass. 211, 98 N.E. 700; Noyes v. Gardner, 147 Mass 505, 18 N.E. 423, 1 L. R. A. 354.

The only doubtful question in the case is whether the defective railing was the proximate and sole cause of the accident. This question arises from the presence in the road of a trig stone 'about the size of a man's fist,' against which the right front wheel of the wagon came in contact thereby causing the pole to which the horses were attached to swerve and throw one horse off his balance. Assuming that the trig stone was a concurring cause of the accident, nevertheless it would not break the causal connection between the defective railing and the injury, and thereby relieve the town, unless its presence in the road was due to negligence. The law may regard a defect as the sole cause of an accident and hold a town responsible therefor, although the innocent act of the plaintiff or of a third person intervenes between the defect and the injury. As was said by Holmes, J., in Hayes v. Hyde Park, 153 Mass. 514, 27 N.E. 522, 12 L. R. A. 249. 'The mere fact that...