Pollard v. Woburn , 104 Mass. 84 ( 1870 )

Chapman, C. J.

The town was liable for an injury occasioned by a defect of the highway, though it was within the limits of the railroad as located. Gen. Sts. c. 63, §§ 60, 67, 69. Davis v. Leominster, 1 Allen, 184.

There was evidence tending to show that the plaintiff used ordinary care. The night being dark and foggy, the plaintiff and his companions could not see the hole; and the plaintiff did not know of its existence; but some sticks were placed loosely around it. They all turned to the right, and the plaintiff’s purpose was to avoid the sticks, and he supposed he had turned far enough to avoid them. His companion who was walking close by his right side also supposed they had gone far enough to avoid them. But as the plaintiff was passing, he placed his left foot so near the hole that it went down. From all these circumstances the jury might reasonably infer that he used ordinary care, but stepped too near the hole by a mistake or miscalculation such as any ordinary person might be liable to make. Exceptions overruled,.