Inhabitants of Brookfield v. Walker

100 Mass. 94

Opinion

Foster, J.

In this case the learned judge ruled, upon the admitted facts and the plaintiffs’ offers of evidence, that the action could not be maintained. The statements are obscure and not entirely intelligible. One offer, however, was, to show that the defendants maintained the pond of water by means of the causeway and flume. This language may mean that by affirmative acts they maintained and assumed the charge of the causeway and flume. If so, they would be responsible for any damage caused by negligence in the care of it; and the relocation of the highway after the causeway was built would not exonerate them from the responsibility of due care so long as they maintained the structure, the decay and want of repair of which caused the mischief complained of.

Inasmuch as the defendants were not allowed to introduce their evidence, justice requires that their offer of proof should be regarded in a light favorable to them, and should receive any construction of which it is fairly susceptible, which they may claim to put upon it. For this reason, the

Exceptions are sustained.