Collins v. Inhabitants of Dorchester

60 Mass. 396, 6 Allen 396

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1850
• Status: Published

Opinion

Metcalf, J.

1. The testimony of Sprague, that he, before the injury complained of by the plaintiff, received a similar injury, at or near the same place, without any negligence on his part, was not competent for the purpose of proving that the road was defective at the time and in the place of the plaintiff’s injury. It was testimony concerning collateral facts, which furnished no legal presumption as to the principal facts in dispute, and which the defendants were not bound to be-prepared to meet. Standish v. Washburn, 21 Pick. 237; 2 Stark. Ev. 381 et seq.; 1 Greenl. on Ev. §§ 52, 448. Even a judgment recovered by Sprague against the defendants for damages sustained by him by reason of a defect in the road, would not be admissible in evidence in favor of this plaintiff.

2. The reports of committees of the town, relating to the condition of the road, and the action of the town on those reports, were rightly held, by the judge, not to be competent evidence of an admission, by the town, that the road was defective. As we understand this point, the present case cannot be distinguished from that of Dudley v. Inhabitants of Weston, 1 Met. 477.

3. The plaintiff’s counsel insists that towns are “ ordinarily” bound by law to fence their roads, and that the judge erred in instructing the jury otherwise. But the judge afterwards told the jury that towns were bound to erect fences or railings at such places as would be unsafe or inconvenient without them ; so that it is immaterial whether he was right or wrong in saying that they were not ordinarily bound so to do.

Exceptions overruled.