Brooks v. Inhabitants of Petersham , 82 Mass. 181 ( 1860 )

Bigelow, C. J.

The objections urged to the evidence which was offered to show the width of the road at the place of the accident several months after it happened go to its weight and not to its competency. The condition of the road at the time the occurrence took place was undoubtedly the real subject of inquiry. But in those particulars in which it was proved to have remained unchanged, its subsequent condition was direct evidence bearing on its safety and convenience previously. An accurate measurement of the road from side to side, and of the width of the travelled path, is often essential to enable the jury to pass intelligently on the issue presented to them in cases similar to the one at bar; and there can be no danger in admitting evidence of such facts, although ascertained subsequently to the time when the alleged defect in the highway is said to have existed, if it is accompanied by proof that no material change has taken place which can affect the accuracy of subsequent observations. Aldrich v. Pelham, 1 Gray, 510.

The instructions given to the jury seem to have been full and for the most part correct, and well adapted to the facts in proof. But in one respect they were defective, and tended to mislead the jury in weighing the evidence bearing upon one of the essential issues in the case. The plaintiff was bound to use ordinary care as well after as before the horse began to run, in consequence of the defect in the road. She could not abandon herself to needless alarm or give up all proper control of the horse, in consequence of the peril to which she was exposed by the negligence of the defendants in omitting to keep their road in suitable repair. She was still bound to use such care as a person of ordinary prudence and discretion would exercise if placed in similar circumstances and exposed to a like danger, making due allowance for the alarm into which she and her companion were thrown by the occurrence of the accident. If such care had been used, the horse might have been kept under control so as to avoid the defect in the road. The error in the instructions was that the jury were told that “the mere want of prudent management on the part of Mrs. Brooks or her companion after the horse began to run, or the mere fact that she imprudently seized the reins and turned the horse from the road, would not exonerate the defendants.” This in effect left the jury to find a verdict for the plaintiff, although she was guilty of a want of ordinary care which contributed to the accident. Imprudence implies a want of due care. Being of opinion that the residue of the instructions was not sufficient to do away with the erroneous impression which the jury might well have derived from this portion of the charge, we feel compelled on this ground to order a new trial.

Exceptions sustained.