Horton v. Inhabitants of Ipswich

66 Mass. 488

Opinion

By the Court.

This was mainly a question of fact; we think it was left to the jury under instructions not exceptionable in matter of law, and, therefore, that the judgment must be entered on the verdict for the plaintiff. The real point is, not whether the plaintiff was chargeable with any negligence in making his way over the road, after he had entered upon it; but whether he knew, or had reason to believe, that the road was dangerous, when he entered on it, or before he had reached any dangerous place. If so, he could not, in the exercise of ordinary prudence, proceed and take his chance, and if he should actually sustain damage, look to the town for indemnity. Holman v. Townsend, 13 Met. 297.

It is not sufficient, in such a case, to prove that the town was chargeable with negligence; that may be a breach of public duty. But unless a traveller, without knowledge or reasonable notice of the danger, and in the use of such ordinary care and caution, as a man of ordinary care would use, in avoiding the dangers of travelling, sustain damage from the defect, he cannot recover. Reed v. Northfield, 13 Pick. 94.

It appears to the court, that this legal principle was fairly stated to the jury, and, therefore, the verdict must stand.

Exceptions overruled.