Barton v. City of Springfield , 110 Mass. 131 ( 1872 )

Colt, J.

The jury were told in this case that the plaintiff must affirmatively show that she was in the exercise of due and ordinary care under the circumstances in which she was placed. Due and ordinary care was also defined in terms which were not excepted to and are not reported.

The defendant was not entitled to the ruling asked, unless the circumstances set forth in the prayer for instructions preclude the possibility of due care on the part of the plaintiff. They do not. The evidence is not all reported, and the jury were justified in finding due care, notwithstanding the specified conduct of the plaintiff. The fact that she was, frightened and ran along the walk does not make the exercise of due care impossible. Alger v. Lowell, 3 Allen, 402. Nor is it required that the traveller’s thoughts should be constantly upon the condition of the way over which he passes as to its want of repair. That circumspection only is required which prudent men ordinarily use. It is certain that previous knowledge of the existence of a defect, although it has an important and oftentimes decisive bearing on the question, is not conclusive, and the plaintiff may recover notwithstanding. And it is impossible to say, as matter of law, where all these elements are combined, that the jury would not be justi fled in finding for the plaintiff. Mahoney v. Metropolitan Railroad Co. 104 Mass. 73. Exceptions overruled.