Pomeroy v. Inhabitants of Westfield

28 N.E. 899, 154 Mass. 462, 1891 Mass. LEXIS 155

• Court: Massachusetts Supreme Judicial Court
• Decided: October 24, 1891
• Status: Published

Opinion

Holmes, J.

These are actions for personal injuries alleged to have been caused by a defect in a highway. There was evidence that the travelled part of the way, at the point where the plaintiffs left it, was thirteen or fourteen feet wide, and that more than half of this part, on the plaintiffs’ left as they Avere driving, was made impassable, or at least was in such a condition that it was prudent to avoid it, by reason of a deep mud-hole, so that there was left barely room for one team to pass; that the plaintiffs kept to the right in the effort to avoid the hole, and, it being dark, went off the travelled part of the way, and were upset by a ditch or rock within the limits of the way. The question is whether the judge should have directed a verdict for the defendant, on the ground either that there was no evidence of a defect, or that there was no evidence of due care on the part of the plaintiffs.

The jury were warranted in finding that the mud-hole was a defect, and that under the circumstances the injury to the plaintiffs was a natural consequence of a proper attempt to keep out of the hole. The intervention of a prudent act of this sort on the plaintiffs’ part would not prevent their recovery. Flagg v. Hudson, 142 Mass. 280. Hayes v. Hyde Park, 153 Mass. 514. The strongest argument for the defendant would be, that, although there is evidence of a defect, and although the conduct of the plaintiffs at the instant was prudent, yet they, or at least the plaintiff Phelon, the driver, had taken the risk upon themselves at an earlier moment by electing to travel upon the road, inasmuch as Phelon was well acquainted with the road and understood its dangers. Miner v. Connecticut River Railroad, 153 Mass. 398. Perhaps this argument might be met by saying that it was a question for the jury in this case whether Phelon did understand the dangers fully. Ferren v. Old Colony Railroad, 143 Mass. 197, 200. In one sense, the event proves that he did not, since he undoubtedly expected to get through safely. Thomas v. Western Union Telegraph, 100 Mass. 156, 158. Mahoney v. Metropolitan Railroad, 104 Mass. 73, 75. Dewire v. Bailey, 131 Mass. 169, 171.

But, further, in determining the right of a plaintiff to recover, there are two elements to be considered; first, how far he is chargeable with knowledge of the danger which he incurred, and then under what exigency he acted. That is to say, the exigency legitimately may affect not only the question how far he appreciated or ought to have appreciated the danger, but also how far he could run a risk known to be greater than prudently could be incurred under ordinary circumstances without losing his right to recover in case he was hurt. Especially is this true in cases like the present, where the parties are not in an equal position. The plaintiffs were away from home, and had to get back. They depended on the defendant for safety in doing so, and it was the defendant’s power and duty to keep the way free from defects.

In such a case, even if it were found that the plaintiffs knew that they were attempting a dangerous drive, it could not be said, as matter of law, that they were not warranted in doing so. The decisions have carried this principle much further than is necessary for the purposes of the case at bar. Linnehan v. Sampson, 126 Mass. 506. Eckert v. Long Island Railroad, 43 N. Y. 502. Pennsylvania Co. v. Langendorff, 48 Ohio St. 316. Donahoe v. Wabash, St. Louis, & Pacific Railway, 83 Misso. 560. Maus v. Springfield, 101 Misso. 613, 618.

Exceptions overruled.