Tuttle v. Lawrence

• Decision Date: 04 January 1876
• Parties: Lydia C. Tuttle v. City of Lawrence
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 276

Lydia C. Tuttle v. City of Lawrence

Supreme Court of Massachusetts

January 4, 1876

Argued November 3, 1875

Essex. Tort for personal injuries occasioned by an alleged defect in a public street in Lawrence, called Essex Street, which the defendant was bound to keep in repair. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:

The defect complained of was caused by the Merrimack Horse Railroad Company having laid tracks, under its charter and with the consent of the city of Lawrence, through Essex Street, said defect consisting of an excavation in the snow caused by ploughing out the snow over said tracks for the purpose of running the cars of said company.

The plaintiff offered evidence tending to prove that on December 26, 1872, she was driving in a sleigh, the horse attached to which was driven by her son-in-law down Broadway, a street at right angles with Essex Street; that she turned from Broadway into Essex Street, and near the corner crossed Essex Street diagonally, and while so crossing, the right hand runner of her sleigh sank into the excavation over the right hand rail of said company, by means of which the sleigh was upset and she was injured. She also offered evidence tending to prove that the horse was driven at a moderate rate of speed, not exceeding five miles an hour.

The defendant contended and offered evidence that the horse was driven at a very much higher rate of speed, namely, at the rate of ten miles an hour, and that the injury received by the plaintiff was occasioned by driving at a high rate of speed, and that the sleigh was upset by coming quickly round the corner of Essex Street and Broadway.

One of the witnesses called by the plaintiff, on cross-examination testified, that the horse was what is called a short-gaited horse, and that in travelling he looked as if he was going much faster than he really did go, and that he could not be possibly driven faster than at the rate of a mile in four minutes. The defendant's counsel thereupon proposed this question to the witness: "What was his speed?" Upon the plaintiff's objection, the judge would not permit this question to be answered. This evidence was offered, not to show the specific speed of the horse at the time of the accident, but to show the horse's ability for speed, and to control the testimony of the plaintiff's witness in cross-examination upon that subject.

The defendant called two witnesses who saw the plaintiff as she drove into Essex Street, and saw the course in which she drove across said Essex Street, and they were asked if it was possible for the sleigh, at the angle at which it was crossing the track, to have gone into the excavation aforesaid. The question was objected to, as incompetent in substance, and was excluded.

The defendant put in evidence an ordinance of the city prohibiting the driving of any vehicle through any of its streets at a rate faster than six miles an hour, and offered evidence tending to prove that at the time of the accident the plaintiff was driving at a speed much higher than that allowed by the city under said ordinance. Upon the matter of this ordinance, the judge ruled, at the plaintiff's request, as follows: "The burden is upon the plaintiff to satisfy the jury, by a fair preponderance of the evidence that at the time of the...