Flagg v. Inhabitants of Hudson

8 N.E. 42, 142 Mass. 280, 1886 Mass. LEXIS 320

• Court: Massachusetts Supreme Judicial Court
• Decided: July 3, 1886
• Status: Published

Opinion

Field, J.

Whether the plaintiff or the plaintiff’s husband was in the exercise of due care was for the jury to determine.

The defendant contends that the evidence failed to show that the injury was caused solely by a defect in the way, and was insufficient to warrant a verdict for the plaintiff; that the real, cause of the injury was the collision; that the last two instructions requested should have been given ; and that the instructions given were not substantially the same in meaning as those requested.

We think there was evidence for the jury, that the injury was caused solely by the tipping of the buggy, and that this was* caused by its wheels running over the shoulder of the road and upon the steep slope on the easterly side of it; and that this slope was of such a character, and so near to the travelled part of the road, as to make the road itself dangerous to persons travelling upon it. See Harris v. Newbury, 128 Mass. 321.

The exceptions find “that the injury to the plaintiff came either from her fall upon her husband when the buggy tipped, or from the collision of the buggy with the hack.” Upon the relation of the collision to the cause of the injury, the court instructed the jury that the defect must be the sole cause of the injury, but by that “ the jury will not understand that the plaintiff must prove that her injury was caused solely by her coming in contact with a defect in the highway. The plaintiff’s injury, however, must have been caused by_ contact with the defect, or by a collision of her carriage with another carriage, which was inevitable, in avoiding that defect. If the plaintiff’s carriage, by a defect in the highway, was practically forced into collision with another carriage, and that collision caused her injury, in legal effect the defect caused her injury; but the jury must find, to authorize such conclusion, that the plaintiff’s carriage would not have come in collision with another carriage, to her injury, if there had not been in the highway a defect at the place of her injury.” If then the jury found that the injury was caused by collision with the hack, the jury must also have found that the collision was rendered inevitable in avoiding the defect, and would not have happened without it. As the jury must have found that the plaintiff was in the exercise of due care, and that there was a defect in the way which might have been remedied by reasonable care on the part of the town, of which the town reasonably had notice, the question is whether the injury was received “ through ” the defect, or, in other words, whether the defect was the proximate cause of the injury. If the plaintiff, in the exercise of due care, had jumped from the buggy to avoid apparently imminent danger from the position into which she had been brought by the defect, and, in so doing, had suffered the injury, she could maintain the action. Sears v. Dennis, 105 Mass. 310. Williams v. Leyden, 119 Mass. 237. Lund v. Tyngshoro, 11 Cush. 563.

If the plaintiff’s husband voluntarily turned the horse to the left, to avoid the danger of the buggy’s tipping over, and this was done under a reasonable apprehension that the buggy would otherwise tip over in consequence of the slope which constituted a defect in the way, and the result was the collision and the injury, the defect would still be considered as the cause of the injury, if the plaintiff and her husband used due care. If the horse turned to the left without any action on the part of the driver, and this was the reasonable thing to be done in consequence of the danger of the buggy’s tipping over if he continued on his course, the same conclusion follows. The apparent danger must of course be such that the means taken to avoid it are reasonable under the circumstances. If the injury was caused by the combined effect of the defect in the way and of the negligence of the driver of the hack, the plaintiff cannot recover; but this requires that there should be two concurrent operative causes of the injury. Kidder v. Dunstable, 7 Gray, 104. Rowell v. Lowell, 7 Gray, 100.

In Bemis v. Arlington, 114 Mass. 507, the stones the sight of which frightened the horse were held not to be a defect in the way.; and, if the ridge was a defect, it was but remotely connected with the injury.

The last two requests for instructions do not deal with the question which arises if the collision was caused by the use of reasonable means to avoid the danger caused by the defect in the way. So far as these requests were true statements of the law, they were substantially given in the charge. The plaintiff was permitted to recover only if the defect was the sole cause of the injury; or, in case the collision was the immediate cause of the injury, only if it was inevitable in order to avoid the defect, and was “practically forced” upon the plaintiff by the defect, without which the injury would not have occurred.

The instruction given, as applied to the evidence, seems to us as favorable to the defendant as an instruction that, if the plaintiff and her husband, using due care as travellers upon the-highway, were, by a defect in it, exposed to imminent danger to life and limb, and, as a reasonable precaution to avoid this danger, her husband turned the horse to the left, whereby the buggy was brought into collision with the hack, which otherwise would not have happened, and thus the plaintiff suffered injury, the defect may be considered as the sole cause of the injury. The defendant did not ask for any further instructions upon the nature of the necessity which would justify the plaintiff or her husband in voluntarily incurring the risk of the collision, and we cannot say that the instructions given were misleading.

Exceptions overruled.