Smith v. Conway

• Decision Date: 04 November 1876
• Citation: 121 Mass. 216
• Parties: Wells T. Smith v. Inhabitants of Conway
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 216

Wells T. Smith v. Inhabitants of Conway

Supreme Court of Massachusetts

November 4, 1876

Franklin. Tort for personal injuries, occasioned by an alleged defect in a highway, which the defendant town was bound to keep in repair. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:

It appeared in evidence that the plaintiff, in travelling upon the road, was behind the vehicle of one Mosher, and that near the place of the accident he turned out to his right hand side of the road and passed Mosher's vehicle. It was in dispute how near the place of the accident he was when he so turned out, or how far past the vehicle of Mosher he had got when the accident happened; the plaintiff contending that Mosher's vehicle had not reached the place of accident by many feet, when the plaintiff's vehicle went off a culvert which was not railed, and which the plaintiff contended should have been; but the defendant contending that the vehicle of Mosher was abreast of the plaintiff's vehicle at the time of the accident.

The plaintiff contended also, upon the evidence, that as he drove up behind Mosher he asked Mosher to let him go by; that Mosher drove off to the left side of the road, close up to a washout or hole in the road, which the plaintiff contended the evidence showed existed on the left side of the road that there was no room for the plaintiff to go by on the left side; that the grass was so high on the right end of the culvert that it was invisible to the plaintiff, and that he had no reason to suppose there was any danger in turning to the right, as he did.

The defendant contended that the plaintiff was in violation of the Gen. Sts. c. 77, § 2, and that for that reason he could not recover. The plaintiff contended that, if that was so, a violation of that law did not operate to defeat his action, and affected it only as a circumstance bearing upon the question of due care. The plaintiff also contended that he was justified in turning to the right, both by the action of Mosher and by the condition of the road, and requested the judge to rule that "though the forward traveller has the prior right to the right hand side of the road for his vehicle, yet it is a right he may yield to a fellow traveller behind, and such exchange does not affect the plaintiff's right to recover of the town except as a circumstance bearing on the question of ordinary care." The judge refused so to rule, and, at the request of the defendant, ruled that "the plaintiff cannot justify his attempt to pass on the right side of Mosher unless he shows such an emergency or difficulty in the way as made it reasonably impracticable for him to pass on the left of Mosher, and the burden is on him to show the emergency." The jury found for the defendant; and the plaintiff alleged exceptions.

Exceptions sustained.

G. M. Stearns, for the plaintiff.

C. Delano, (S. O. Lamb with him,) for the defendant.

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

OPINION

Lord, J.

The facts in this case are substantially these: The plaintiff was a traveller upon a highway within the defendant town, and in driving along the way was behind the vehicle of one Mosher which he desired to pass. To do so, he turned out upon his right hand side of the road. It does not appear by the report of the case whether he had passed the vehicle of Mosher, or whether he was abreast of it, at the time of receiving the injury for which he brings his action. We presume, however, that the ruling of the presiding judge in the court below was based upon the supposition that, at the time of the injury, his vehicle was abreast of the vehicle of Mosher, and that proper instructions were given in case the jury found that the plaintiff had in fact passed Mosher's vehicle. If he had already passed that vehicle, by many feet, as he contended at...