Pomeroy v. Inhabitants of Westfield

• Decision Date: 24 October 1891
• Citation: 154 Mass. 462,28 N.E. 899
• Parties: POMEROY PHELON v. INHABITANTS OF WESTFIELD. PHELON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 462

28 N.E. 899

POMEROY PHELON v. INHABITANTS OF WESTFIELD. PHELON v. SAME.

Supreme Judicial Court of Massachusetts, Hampden.

October 24, 1891

COUNSEL

Whitney & Brigham, for plaintiffs.

Henry W. Ely, Charles F. Ely, and Arthur S. Kneil, for defendant.

OPINION

HOLMES J.

This is an action for personal injuries alleged to have been caused by a defect in a highway. There was evidence that the traveled part of the way at the point where the plaintiffs left it was 13 or 14 feet wide, and that more than half of this part on the plaintiffs' left, as they were driving was made impassable, or at least was in such a condition that it was prudent to avoid it, by reason of a deep mud-hole, so that there was left barely room for one team to pass; that the plaintiffs kept to the right in the effort to avoid the hole, and, it being dark, went off the traveled part of the way, and were upset by a ditch or rock within the limits of the way. The question is whether the judge should have directed a verdict for the defendant on the ground either that there was no evidence of a defect, or that there was no evidence of due care on the part of the plaintiffs.

The jury were warranted in finding that the mud-hole was a defect, and that, under the circumstances, the injury to the plaintiffs was a natural consequence of a proper attempt to keep out of the hole. The intervention of a prudent act of this sort on the plaintiffs' part would not prevent the recovery. Flagg v. Hudson, 142 Mass. 280, 8 N.E. 42; Hayes v. Town of Hyde Park, (Mass.) 27 N.E. 522.

The strongest argument for the defendant would be that, although there is evidence of a defect, and although the conduct of the plaintiffs at the instant was prudent, yet they, or at least the plaintiff Phelon, the driver, had taken the risk upon themselves at an earlier moment by electing to travel upon the road, inasmuch as Phelon was well acquainted with the road and understood its dangers. Miner v. Railroad Co., (Mass.) 26 N.E. 994. Perhaps this argument might be met by saying that it was a question for the jury in this case whether Phelon did understand the dangers fully. Ferren v. Railroad Co., 143 Mass. 197, 200, 9 N.E 608. In one sense the event proves that he did not, since he undoubtedly expected to get through safely. Thomas v Telegraph Co., 100 Mass. 156, 158; Mahoney v. Railroad Co., 104 Mass. 73, 75; Dewire v. Bailey, 131 Mass. 169, 171.

But further, in determining the right of a plaintiff to recover there are two elements to be considered: First, how far he is chargeable with knowledge of the dangers which he incurred, and then under what exigency he acted. That is to say, the exigency legitimately may affect not only the question how...