White v. City of Boston , 1877 Mass. LEXIS 168 ( 1877 )

Lord, J.

We are all of opinion that too much weight was, at the trial, attached to the testimony of the plaintiff, that, “ when he entered the avenue, he understood, from seeing the horse and light across it, that the avenue was undergoing repairs, and was closed to travel, but that he supposed the repairs were on the road-bed only.”

It is undoubtedly true that the authorities of a city or town may temporarily close a highway against use, for the purpose of making repairs in the way, and escape liability to any person, who may attempt to use or use the same as a way, with knowledge that it is closed. Even if unnecessarily closed, if in fact closed, the remedy for such closing is by indictment, and no right of action accrues to an individual because of it. But, in order to relieve the municipality from liability, to a person sustaining injury by reason of his attempt to use it, it must be closed. What is sufficient to show that it is thus closed is a question of fact. The statute does not prescribe any particular mode of notifying the traveller that a way is closed. Nor is there any difference in this respect between different parts of the way; if the way is closed it is closed to all travel, as well on foot as by carriages or teams.

Whether what was done was sufficient to notify the traveller that the way was closed to travel was a question of fact for the jury, or, at least, a question so mixed of law and fact that it should have been submitted to the jury under proper instructions. This may depend upon a variety of circumstances: the situation of the way; the travel it was to accommodate; the modes commonly adopted, and the traveller’s knowledge of such modes. Such a barrier as existed in this case might have one interpretation in the country and a different one in the town; it might indicate a closing for some kinds of travel and not for all. It might require a party not to enter at all upon the way, or it might require only that, if he entered, he should do so with more caution than otherwise; and what degree of additional care it demanded was a question for the jury. The court cannot say, as matter of law, that different modes are not adopted in different places; and that some barriers indicate only that a particular kind of travel is deemed dangerous, and not all kinds of travel; nor that a portion of the way is not fit to be used, while other parts of the same way are to be deemed open to travel as safe and convenient. It sometimes happens that the mind incautiously and unconsciously passes upon the weight of evidence, instead of determining whether in reality it is a question- of conflicting testimony; for in case of conflicting evidence, even though the preponderance should be so great that a judge would set aside a verdict if against such preponderance, it is the duty of the court to submit the whole evidence to the jury, for its judgment both upon the credibility and the effect of the testimony. New trial ordered.