Kidder v. Inhabitants of Dunstable , 77 Mass. 342 ( 1858 )

Metcalf, J.

1. In an action for injury sustained in a highway, by reason of an alleged defect therein, evidence is not admissible, either that a person, not a party to the action, has received an injury at the same place, or has safely passed over it. These points have been adjudged and cannot now be considered open. Collins v. Dorchester, 6 Cush. 396. Aldrich v. Pelham, 1 Gray, 510.

3. The judge rightly refused to admit testimony on the question whether the road was broken out in the usual manner of other country roads. The Rev. Sts. c. 25, § 3, require that when a way is incumbered with snow, the same shall be removed or so trodden down as to make the way safe and convenient; and a jury are to decide whether it is safe and convenient, by evidence of its actual condition, and not by comparing it with the condition of other ways.

3. By the Rev. Sts. c. 51, §§ 2, 3, Coburn, if he had no bells on his harness, was guilty of an offence, for which he was liable to the forfeiture of a sum not exceeding twenty dollars, and was “ further liable to any party for all damages sustained by reason of such offence.” The judge instructed the jury, according to the decision of the court, when this case was formerly before us, (7 Gray, 104,) that if the plaintiff’s injury was, in any degree, caused by Coburn’s neglect, she could not recover. The jury therefore have found, by their verdict, that the absence of bells on Coburn’s harness did not contribute, in any degree, to the collision and accident which caused injury to the plaintiff. Judgment on the verdict