Brackenridge v. City of Fitchburg

13 N.E. 457, 145 Mass. 160, 1887 Mass. LEXIS 36

Opinion

Holmes, J.

It is too plain for extended argument, that the court was right in refusing to rule, as matter of law, that the plaintiffs could not recover for a defect in the highway because they were driving a blind horse on a dark night. See Smith v. Wildes, 143 Mass. 556; Wright v. Templeton, 132 Mass. 49; Daniels v. Lebanon, 58 N. H. 284. It was for the jury to consider how dark the night was. They might have found that the plaintiffs could see the road. They might have found that a horse with sound eyes could not have done so. Whatever the degree of darkness, it was for the jury to say whether the horse’s possession of sight would have diminished appreciably the chances of the accident, and it was at least open to them to find that the plaintiffs had a right to assume that the city had done its duty, and therefore that they were not bound to provide against its possible neglect. See Thompson v. Bridgewater, 7 Pick. 188; Learoyd v. Godfrey, 138 Mass. 315, 324; Smith v. Wildes, ubi supra; Glidden v. Reading, 38 Vt. 52, 57.

.Exceptions overruled.