Carey v. Inhabitants of Hubbardston

51 N.E. 521, 172 Mass. 106

• Court: Massachusetts Supreme Judicial Court
• Decided: October 20, 1898
• Status: Published

Opinion

Hammond, J.

1. The question whether the photograph was properly verified, and also whether it was practically instructive to the jury, was to be determined by the presiding justice under the circumstances. Blair v. Pelham, 118 Mass. 420. Verran v. Baird, 150 Mass. 141. One photograph had been already introduced, and, although it did not show the appearance of the stone, the justice may have thought that the second photograph, which it was conceded did not show the' actual condition of the grass and weeds at the time of the accident, would be misleading rather than helpful. We see no ground for holding that there was error in excluding it.

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2. After stating that it was the duty of the defendant to keep the way reasonably safe and convenient for travellers, and to “ work sufficient width ” for that purpose, the presiding justice submitted to the jury, under instructions to which no exception was taken, the questions whether a sufficient width was worked, whether the stone was a defect, and whether there was negligence on the part of the defendant in allowing it to be there, or in allowing the grass and weeds to grow around it.

He then defined the degree of care required of the plaintiff, and used this language: “ Now, under those circumstances, is it a proper thing to do to drive off the travelled part of the wray upon that grass? Would that be due care? If so, she was exercising due care. If it is not due care, she would not be exercising due care, and it would bar her from recovery.”

Then follows that part of the charge to which exception is taken, as follows:

“ If Mrs. Cunningham knowingly drove out of that portion of the way prepared for travel without being forced so to do by some peril or danger in the travelled way, and without any reasonable cause therefor, she took the chances of contact with any object that might be outside of the way, and for the effects of that contact she could not recover.

“ You see this is a case where I suppose she does it knowingly. When she sees there are grass and weeds growing by the side of the way, and she knowingly and wilfully drives upon the grass outside the travelled part of the way, when there is no danger in the way itself which causes her so to do, and when there is no reasonable necessity for her so to do, under those circumstances she takes the chances of any collision that may take place with any obstacle that is obscured from her view by the growing grass and weeds.

“ If she heedlessly and carelessly allowed her horse to get out-of the travelled way, she then took the risk incident to passage over that portion of the road which is outside of the travelled way. I give you these specific instructions because of the nature of the evidence in the case, and in order that the rights of all parties may be preserved.

“ If she knowingly went out of the way, and there was nothing in the way to force her out, if there was no reasonable cause for her to go out, and she entered upon that part of the way which was not wrought for travel, then she did it at her own risk, and the consequences would fall upon her.

“ If, on the other hand, unthinkingly, carelessly, and not observing where the horse was going, allowing him to take his own course, she let him wander outside the travelled part of the way on to the grass ground and there met with an obstacle, the consequence would fall upon her and she could not recover.”

We understand these instructions, taken in connection with what precedes, to say in substance that if the plaintiff, without any reasonable cause therefor, knowingly drove out of the way prepared for travel, or if she carelessly allowed the horse to get out of it and in that way was injured by contact with the stone, she could not recover; and such we understand'to be the law. Tisdale v. Norton, 8 Met. 388. Shepardson v. Colerain, 13 Met. 55. Harwood v. Oakham, 152 Mass. 421.

The remaining exceptions were waived in the defendant’s brief.

Exceptions overruled„

The second photograph showed the location in question around the corner, including the travelled part of the way, the stone, the grass or grass and weeds around the stone, and the line of the grass along the travelled part of the way and between the stone and the travelled way, the growth of grass being then short and close to the ground. The defendant objected to the admission of this photograph, on the ground that it was taken at a season of the year which did not show the grass and foliage as they existed at the time of the accident. The defendant’s counsel stated that he did not claim that there was any change in the location as shown in the photograph since the accident, except in the matter of the growth of grass and foliage. The justice excluded the photograph; and the plaintiffs excepted.