Schoonmaker v. Inhabitants of Wilbraham

110 Mass. 134

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1872
• Status: Published

Opinion

Wells, J.

T.je testimony, offered to show that other persons, with other vehicles, drove “ at considerable speed ” over the road, at the place alleged to be defective, and that no accident occurred to them, was properly excluded. It was not competent as a test, either of the degree of care with which the plaintiff was driven, or of the question whether the way was defective. Kidder v. Dunstable, 11 Gray, 342. The question whether the way, as described, was defective, is not before us otherwise than by the offer of the evidence above referred to.

Upon the question of due care, it does not appear from the exceptions that the fact that the witness Warner had “ seen roads with the same declivity, and with the same width and kind of road bed, in all particulars, as this where the accident occurred,” in the same and adjoining towns, could have had any pertinency. If such evidence is ever competent, it must be in connection with evidence of other circumstances affecting the plaintiff, or the driver, and showing familiarity with or knowledge of such condition of the ways in the vicinity. In the absence of such proof the presumption is in favor of the ruling at the trial excluding the evidence. Exceptions overruled.