Spurr v. Shelburne
| Decision Date | 22 October 1881 |
| Citation | 131 Mass. 429 |
| Parties | George W. Spurr v. Inhabitants of Shelburne |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Franklin.
Exceptions overruled.
A. De Wolf, for the plaintiff.
H Winn, for the defendant.
The evidence at the trial tended to show that one Smead was driving the plaintiff's horse over a highway in the defendant town, in the evening; that the horse left the wrought and travelled part of the way, and, after proceeding along or near a ditch outside of the travelled part a distance of twenty-five or thirty feet, fell into the ditch and was injured. The only defect claimed was the want of suitable railings. The plaintiff asked the court to rule" that if at the point of the accident there was no railing, and a railing was there required to make the way reasonably safe, then the road was defective and the plaintiff may recover, notwithstanding the horse had proceeded for more than twenty-five feet along the side of the travelled way, if at no time he had been twenty-five feet from the road." The court did not give this instruction, but instructed the jury, "that, if they found that no railing was reasonably required at the point where the horse and carriage left the travelled part of the way, the defendant would not be liable for the want of a railing at the place where the accident happened, the horse having continued out of the wrought or travelled way as before stated; that if a railing would have prevented the horse going off, and the town ought to have had a railing where it would have prevented him going off, the town is liable; but if the inhabitants of the town were neglectful of their duty in not having railings where they should have been, but this neglect to erect railings was not the cause of the plaintiff's horse going off, the defendant would not be liable."
On the rendition of the verdict for the defendant, the court inquired of the jury upon what ground they found their verdict. The foreman replied, "On the ground that the ditch was so far distant from the travelled road that no railing was necessary."
The court further inquired, "Do you find this under the instruction of the court, that, if the place where the plaintiff's horse went off was over twenty-five feet from where he deviated from the highway, he could not recover for the want of a railing there?" The foreman answered "No, we find it without...
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