Whitney v. Inhabitants of Leominster

• Decision Date: 20 October 1883
• Citation: 136 Mass. 25
• Parties: Waldo Whitney v. Inhabitants of Leominster
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 25

Waldo Whitney v. Inhabitants of Leominster

Supreme Court of Massachusetts

October 20, 1883

Worcester. Tort, for personal injuries sustained by the plaintiff, on January 29, 1881, by reason of an alleged defect in a highway in the defendant town. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:

The defendant contended that the plaintiff was not in the exercise of due care at the time of the injury, and offered evidence tending to show that he was driving his horse at a high rate of speed at the time, one of the witnesses estimating it at fifteen miles an hour. The defendant offered evidence that the horse of the plaintiff had been driven on a race-course, at times prior and subsequent to the time of the plaintiff's injury, at the rate of speed of a mile in three minutes. To the admission of this last evidence the plaintiff objected, but the judge admitted it.

It appeared in evidence that it was good sleighing, and that the plaintiff had been at his place of business, about one mile and a half from home, and was going towards home on a cold winter afternoon. The plaintiff testified that he was driving at the time of the injury at a rate of about five or six miles an hour, which was about the common gait of the horse a little slower if anything, as he had two men with him in the sleigh. The plaintiff also testified, on cross-examination, against some objection on his own part but without exception being taken, that he thought his horse could trot a mile in about three minutes.

The judge, in admitting the above evidence offered by the defendant as to the speed at which the horse had been driven said he admitted it as tending to show the capacity for speed of the plaintiff's horse, and as bearing upon the reasonableness and probability of the respective testimony as to his actual speed under the circumstances at the time of the accident.

The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

Exceptions overruled.

H. C. Hartwell, for the plaintiff.

F. P. Goulding & H. Mayo, for the defendant.

Devens J. Field & W. Allen JJ., absent.

OPINION

Devens, J.

It was in controversy whether the plaintiff was in the exercise of due care, and there was evidence tending to show that he was driving at a high rate of speed, one of the witnesses estimating it at fifteen miles an hour. As tending to show the capacity of the plaintiff's horse for speed, and as bearing upon the probability of the testimony as to his actual speed at the time of the accident, the defendant was permitted to show that the horse had been driven on a race-course at the rate of a mile in three minutes. As thus limited, the evidence was competent. The fact to be determined was undoubtedly the rate of speed at...