Thompson v. Town of Bolton

• Decision Date: 27 February 1908
• Citation: Thompson v. Town of Bolton, 197 Mass. 311, 83 N.E. 1089 (Mass. 1908)
• Parties: THOMPSON v. TOWN OF BOLTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 311

83 N.E. 1089

THOMPSON v. TOWN OF BOLTON.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1908

COUNSEL

H. N. Allin, for plaintiff.

Charles F. Choate, Jr., and Harlan H. Ballard, Jr., for defendant.

OPINION

RUGG J.

The place where the plaintiff was injured was on a little traveled back road.There were three houses on it, in one of which the plaintiff lived.There was no evidence that it had ever been laid out as a highway, but there was evidence that it had been used for more than 20 years as a way, that its side lines were marked by walls, and that repairs had been made upon portions of it by officers of the defendant within 6 years.The plaintiff had been using the road frequently and knew of the place where the injury occurred for about 2 years.Her description of the accident was as follows 'It was about 9 o'clock in the morning * * * May 7 1901.I saw two wood teams coming and I turned out, waiting for these to pass, and then started on; and as I came towards the dry bridge * * * I had to swing to the right to avoid a stone, and immediately to the left again.As I swung to the left I thought of a place on my left where I had got the wheel caught once before and immediately bore to the right.I tightened the reins quickly and the horse sprang forward and drew me onto and over this stone.* * * The wheel went down over the stone and I was thrown.* * * The first stone * * * was where the gutter had gullied out and left this rock uncovered.* * * The first stone * * * was uncovered to about that height, a rough guess, six or seven inches; * * * it was a rough stone.I do not know whether that stone formed one of the covering stones over the bridge or whether it was a boulder at the side of the dry bridge.It was close to it.* * * There was only a point up in the road * * * in the wheel rut.The stone * * * over which the wheel went * * * was a large upright stone.I should say a boulder that had been in the road and the gravel had been washed away to the depth of a number of inches.It was at the right of the wheel rut close to the wheel rut.* * * From the top of that stone to the ground I should say was seven or eight inches if not more.'

This showed a condition of the road, which the jury might have found to be defective.This is not a case of a single stone just outside the traveled way six or eight inches high, but of a combination within a short distance of a sharp stone jutting into the wheel rut and a place where a wheel was liable to get caught and the stone against which the wheel struck.Rust v. Essex,182 Mass. 313, 65 N.E. 397, is therefore to be distinguished.This combination of circumstances, together with the location of the road, the amount of travel upon it, the length of highway which the town was required to keep in repair, its valuation and the amount available for expenditure upon highways were all proper subjects for consideration...