Carville v. Inhabitants of Westford , 163 Mass. 544 ( 1895 )

Barker, J.

These were actions for personal injury and for damages to property sustained by reason of a defective highway. The accident occurred on March 18,1891, when, although wagons were in use, there was still ice and snow upon the road, which was in a thinly settled part of the town. The plaintiff Daniel Carville was driving a team of four horses, which were drawing a wagon heavily loaded with stone. The wrought roadway was said by witnesses to have been from ten to thirteen feet wide from shoulder to shoulder, with a slope into the gutter upon the right as the team was going of from two feet to two and a half feet in depth, and the road was crossed by a brook which was carried under the roadway by a culvert covered with flab stones, the perpendicular distance from the top of the culvert to the bottom of the brook being about four feet.

The brook filled the culvert, so that, although there was another driveway through the brook, it was not in a condition for use. The width and configuration of the travelled way, the amount and condition of the ice upon it and of the snow in the gutters, and the exact place and manner of the accident were in dispute. It appears, however, that in some manner, at a point either about sixty-five feet from the culvert, or very near the culvert, the off rear wheel of the wagon left the travelled path and went down the slope into the gutter, and in an attempt to get the wagon again upon the usual path the wagon was overturned, and it and the wheel horses carried into the brook, and the injuries for which the actions are brought were occasioned.

One of the defects alleged in the declaration was a want of a sufficient railing, and the evidence was that there was no railing by the side of the wrought way. The plaintiffs contended that the road was narrower than it ought to have been, and rounding, and that the narrowness with the want of a barrier and the icy condition produced a defect in the whole situation arising from those circumstances ; while the defendant contended that there was no defect, that the driver took upon himself the risk of an overturn, and that the accident was due to his negligence.

We consider only the questions raised by the defendant’s brief and argument. The first is a question of evidence. Evidence was admitted to show that a witness called by the defendant had made out of court statements inconsistent with his testimony. The defendant contends that because the attention of its witness was not called to the time, place, and circumstances of his alleged contradictory statements when he was himself upon the stand, the evidence was inadmissible. But such a course is not necessary under our practice, when the witness is called by the opposite party. Gould v. Norfolk Lead Co. 9 Cush. 338. Blake v. Stoddard, 107 Mass. 111.

The other questions for decision arise upon the defendant’s requests for rulings, that the evidence did not warrant verdicts for the plaintiffs; that if the driver saw the ice and snow before he reached it and knew that the road was dangerous, and voluntarily proceeded, he took the risk upon himself; and that if the driver was in such a position that it was his duty to do something which if done in one way would be dangerous but in another way would not, he was bound to adopt the latter course, and if he voluntarily adopted the dangerous one the plaintiffs could not recover. So far as the requests were correct in law, we think they were in substance given in the charge.

While an examination of the testimony as it is reported gives us the impression that the defendant ought to have prevailed, we cannot say that, as matter of law, verdicts should have been ordered for the defendant. The jury would have been justified in finding that the way was not defective, and also that the driver not only failed to act with ordinary care, but recklessly and in disregard of the warning of others present brought on the accident by so attempting to pull the wagon again upon the roadway that the only result which could be reasonably expected was an overturn into the brook. But upon all these points there was a decided conflict of testimony, and there was evidence upon which the jury might find that the way was defective, and that the driver acted with ordinary care, and that the accident would not have occurred if the way had been reasonably safe and convenient.

A jury may find that a rounded roadway only eleven feet wide, and covered at least in part with smooth hard ice, and with a steep slope at the side into a gutter encumbered with snow where the roadway is crossed by a brook, and with no railing by the side of the roadway or upon the culvert, is a defective way, even in a sparsely settled locality and at the season when sleighing has just ended and travel is upon wheels.

So, too, a jury may find that when the off rear wheel of a four-horse wagon loaded with stone has been thrown into a gutter by passing over a stone upon the surface of a narrow, rounded, and icy roadway, at a point sixty-five feet from a culvert through which a brook crosses the roadway, the driver may in the exercise of due care attempt to pull the wagon back upon the usual path without unloading it, and may even continue his attempt until the wagon is overturned into the brook. Whether in this instance the driver’s attempt, persisted in until the accident, was an exercise of ordinary care, was a question of fact for the jury. So, too, whether under all the circumstances the danger was so obvious and great and the exigency so slight as to make it a want of ordinary care for the driver to attempt to pass over the road, was a question for the jury. Although the driver knew the situation, it cannot be said, as matter of law, that he was not warranted in driving over the road, which was in common use by others as well as by himself. Pomeroy v. Westfield, 154 Mass. 462, 465. Coffin v. Palmer, 162 Mass. 192.

It was in our opinion the duty of the presiding justice to submit to the jury the conflicting evidence bearing upon the questions whether the way was defective, and whether the plaintiffs were injured or their property damaged solely by reason of the defect, and not by the recklessness or want of care of one of the plaintiffs, who was in charge of the horses and wagon. The instructions given were accurate and careful, and gave proper rules for the guidance of the jury. Exceptions overruled.