Fitz v. City of Boston , 58 Mass. 365 ( 1849 )

Shaw, C. J.

Were this a motion to set aside the verdict, as against the weight of evidence, and we were certain that all the evidence was reported, we should think it presented a strong case for the defendants. But no such motion being before the court, and the evidence being stated for another purpose and perhaps partially, we are not at liberty to form an opinion on such grounds.

The question is upon the correctness of the instructions given by the court. [Here the judge recapitulated the evidence and the instructions to the jury.] The last clause in this charge, the case put by way of illustration, was excepted to by the counsel for the defendants, as stating a different rulé of law for different corporations, and in this-respect incorrect and tending to mislead the jury. To understand the force of this objection, it is necessary to inquire and ascertain what the purport of the illustration was. The presiding judge stated, that a different state of repair would be required in a city, where a large amount and variety of travel was constantly passing, and in a country place, where the state of things was different in this respect.

We do not understand the court as intending to make any distinction between the duties of cities, towns and districts, as such; but that the term “ city ” was used as intended to designate a thickly-settled place, with houses and stores contiguous or near to each other, with a great amount and variety of travel, as contradistinguished from places thinly settled, and houses remotely scattered, through which there is little amount and variety of travelling. Thus understood, we think this illustration was a just comment on the law, and not likely to mislead a jury.

It is not that a different rule of duty is prescribed for different corporations; all are bound to keep their highways and town ways in such repair, that the same may be safe and convenient for travellers, with their horses, teams and carriages, at all seasons of the year. But the question is, what is safe and convenient; and this may depend on the quantity and variety of travel.

A street thickly built with shops and' houses, crowded at once with heavy and bulky loads, lighter teams and wagons, horse wagons, market carts, and all the variety of light conveyances for the transportation of persons, going necessarily at very different rates of speed, with the ordinary exigencies of frequently crossing, recrossing and stopping for purposes of business, at the various shops and houses, may require not only a wider, but a harder, smoother and more uniform surface to render the road safe and convenient.

The number of heavy teams passing from one part of a populous place of business to another, in a few hours, might at times crush and break up a road covered with earth and gravel, which yet would maintain a smooth and unbroken surface, under the little travel, which would pass over it, in a thinly-settled place.

The counsel for the defendants requested the court to instruct the jury, that there was no difference between the city and country in this respect, except that in a city, streets must be made wider and more spacious. This we think could not be laid down, as a legal proposition, general in its application, because circumstances may exist, where something more is necessary in a city street, in the way of hardness, firmness and smoothness, these qualities- being no less important than width to safety and convenience.

Indeed, the difficulty arises in laying down any precise proposition, as a rule of law, where the statute has prescribed none. Much must depend upon circumstances, which are ever varying; the ultimate object being, that the highway, in all cases and under all circumstances, must be safe and convenient for travellers, at all seasons; the question what is safe and convenient depending on circumstances.

In coming to the opinion, that the illustration used by the chief justice of the court of common pleas was not such as would be likely to mislead a jury, we take it in connection with the terms of his charge which preceded it, intimating that the question was a practical one, and putting forth the statement excepted to, not as an absolute rule of law, but as an illustration of his more general rule, showing the application of the statute to the different circumstances, to which it must be applied. Exceptions overruled.