Puffer v. Orange

• Decision Date: 12 March 1877
• Parties: Jacob Puffer v. Inhabitants of Orange
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 389

Jacob Puffer v. Inhabitants of Orange

Supreme Court of Massachusetts

March 12, 1877

Suffolk. Tort for injuries occasioned by an alleged defect in a highway, which the defendant was bound to keep in repair.

At the trial in the Superior Court, before Brigham, C. J., there was evidence tending to prove that the plaintiff on May 18, 1872 was travelling with a horse and buggy on the highway in question in a northerly direction, and was approaching a railroad crossing at grade; that the plaintiff's horse was startled by the noise of an approaching train of cars and jumped towards the right or easterly side of the highway and, because there was no railing on the side of the highway to prevent, rushed into land adjoining it between the railroad and Miller's River; that the plaintiff directed the horse down the river's bank to its foot, where the horse fell and the plaintiff was thrown from the buggy and injured; that when the plaintiff's horse turned from the highway to the right upon the adjoining land, he turned abruptly between one of several posts along the highway and the railroad, and proceeded on the adjoining land in a direction nearly parallel with the railroad for the distance of twenty or thirty feet and then turned down the river's bank; that the highway was smooth and level without gutters on either side, and on the easterly side were the posts above mentioned in the line of the highway, without any railing upon them, indicating an old fence, and the highway to the posts was more or less travelled and not grassed over; that the land adjoining the highway upon the east, bounded by the highway, the railroad and the river's bank, had a surface of sandy loam slightly sloping from the highway; and that the river's bank from the top to the foot was covered with rocks.

The judge ruled that the absence of a railing on the easterly line of the highway was not such a defect, affecting its safety and convenience, as would entitle the plaintiff to maintain this action, directed a verdict for the defendant and reported the case for the determination of this court.

If the ruling was correct, judgment was to be entered for the defendant; otherwise, a new trial was to be ordered.

Judgment on the verdict.

G. M. Hobbs, for the plaintiff, contended that the question whether the absence of a railing was or was not a defect in the highway, should have been submitted to the jury; and cited Palmer v. Andover, 2 Cush. 600; Stevens v. Boxford, 10 Allen 25; Titus v. Northbridge, 97 Mass. 258, 266; Babson v. Rockport, 101 Mass. 93; Murphy v. Gloucester, 105 Mass. 470; Britton v. Cummington, 107 Mass. 347; Marshall v. Ipswich, 110 Mass. 522; Warner v. Holyoke, 112 Mass. 362.

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