Sears v. Inhabitants of Dennis

105 Mass. 310

Opinion

Gray, J.

The liability of towns for defects in a highway is not limited to injuries suffered by reason of a traveller, or his horse or carriage, coming into immediate contact with the defect, but extends to injuries to the horse while under the immediate impulse or impetus received from the defect, or during reasonable efforts to relieve him from the position into which he has been thrown by coming into contact with the defect, or to the traveller by voluntarily leaping from the carriage, in the exercise of ordinary cara and prudence, to avoid apparently imminent danger from being brought into contact with the defect, or from impend- mg consequences immediately resulting therefrom. Stevens v. Boxford, 10 Allen, 25. Babson v. Rockport, 101 Mass. 93. Tuttle v. Holyoke, 6 Gray, 447. Lund v. Tyngsborough, 11 Cush. 563.

In the case at bar, the evidence introduced at the trial would have warranted the jury in finding that the defect in the highway caused the fall of the horse and the breaking of the carriage, and that, while the horse was struggling to rise, and every rea sonable effort was being made to control him, the female plaintiff, in the exercise of ordinary care, and to avoid apparently imminent danger from the. position into which she had been brought by the defect, voluntarily leaped from the carriage, and in so doing suffered the injury sued for. If such were the facts, the action might be maintained. The case should therefore have been submitted to the jury. New trial ordered.