Blood v. Inhabitants of Tyngsborough , 103 Mass. 509 ( 1870 )

Chapman, C. J.

At the time of the accident which caused the injury complained of, Mrs. Blood was driving the horse; and the question presented is, whether any evidence was offered sufficient in law to authorize the jury to find that she used due care. If there was none, a verdict for the defendants should have been ordered by the court.

On examining the bill of exceptions it appears that there was some evidence of care on her part. She was accustomed to drive the horse, and he was steady, kind and gentle; she was acquainted with the road; she was driving down a hill about a quarter of a mile long upon which there were several water-bars in the road, and she'knew the horse could not trot over them with safety; she thought she had passed them all, and then allowed the horse to go upon a trot, but she held the reins in each hand, and appears to have had control of the horse. The wheels were in the regular ruts, and she was looking at the horse. On account of her mistake in supposing she had passed all the bars, she did not see the bar that caused the accident, and the wagon was suddenly turned over by it. -The jury would be authorized to find that ordinary and reasonable care was quite consistent with a mistake as to the number of water-bars, and that, taking into consideration all the circumstances of the case as stated in the bill of exceptions, and the inferences of fact to be drawn from them, the plaintiffs had sustained the burden of proof on their part. The case is unlike that of Gilman v. Deerfield, 15 Gray, 577, where there was no evidence that the plaintiff used any care. Exceptions overruled.