Opinion
07-03-1886
FLAGG v. TOWN OF HUDSON.
[8 N.E. 43] C. Robinson and J.T. Joslin, for defendant. W.B. Gale, S.W. Trowbridge, and J.W. McDonald, for plaintiff.
This was an action of tort, in which the plaintiff sought to recover damages for personal injuries sustained by reason of an alleged defect in a highway in defendant town. Trial in the superior court, before BRIGHAM, C.J., where there was evidence that the plaintiff was driving along the highway in question on April 27, 1883, in company with her husband, when she was thrown from her carriage and injured; that the surface of the constructed roadway was level, and from 111/2 to 12 feet wide between the shoulders of the roadway on each side at the place where the accident occurred, and for some little distance both ways; that on the westerly side the way sloped off gradually to a wall eight or ten feet distant, and grassed over to the wall, on which a carriage could turn out. On the easterly side the easterly wheel-track extended along by the side of and within about a foot of the easterly line of the easterly shoulder of the way, and on that side, from the shoulder, the slope down was at an angle of about 45 deg., about as steep as gravel would stand, and the ground at the bottom of the slope was from one foot and six inches to two feet perpendicularly below the surface of the way. There was no fence or railing on the easterly side of the way, but bushes from six to ten feet high stood by the side of, and somewhat projected over, the easterly edge of the way; that the plaintiff and her husband, while driving along near where the accident occurred, saw a team approaching; the husband of plaintiff pulled the horse up, turning him out; the buggy tipped, and the husband jumped out. The plaintiff testified as follows:
"I and my husband were riding towards home. My husband was sitting on the right-hand side of the buggy, and was driving slowly. It was quite dark, and we were talking. I heard a team coming, and said to my husband, 'Turn out.' He turned out; the buggy tipped to the right, and, as it tipped, I threw out my hand to catch hold of his coat to save falling, and the hack struck us."
It appeared in evidence that the horse and buggy did not go down the side of the way, tip over, or strike against anything on that side after the first tipping, when the plaintiff's husband jumped out; and the injuries to the plaintiff came either from her falling upon her husband after the latter jumped out when the buggy tipped, or from the collision of the buggy with the hack. At the time of the collision, the left or nigh forward wheel of the hack had passed, going to the right of the middle of the traveled path westerly of the path or track made by the horses, and the left or nigh hind wheel of the hack had reached a point between the easterly wheel-track and the horse-track. The plaintiff at the trial claimed that the defect in the road was the absence of a railing, and that the want of the railing was the sole cause of the injuries. The defendant contended that the alleged defect was not the cause of the injuries, and that, had a railing existed at that place, the buggy would have struck against the hack had it avoided the railing, and furthermore that the plaintiff was not in the exercise of due care, by herself and her husband. The defendant asked for certain instructions which the court refused to give, the jury found for the plaintiff, and the defendant alleged exceptions.
COUNSEL
C. Robinson and J.T. Joslin, for defendant.
W.B. Gale, S.W. Trowbridge, and J.W. McDonald, for plaintiff.
OPINION
FIELD, J.
Whether the plaintiff or the plaintiff's husband was in the exercise of due care was for the jury to determine. The defendant contends that the evidence failed to show that the injury was caused solely by a defect in the way, and was insufficient to warrant a verdict for the plaintiff; that the real cause of the injury was the collision; that the third and fourth instructions requested should have been given; and that the instructions given were not substantially the same in meaning as those requested.
We think there was evidence for the jury that the injury was caused solely by the tipping of the buggy, and that this was caused by its wheels running over the shoulder of the road, and upon the steep slope on the easterly side of it; and that this slope was of such a character, and so near to the traveled part of the road, as to make the road itself dangerous to persons traveling upon it. See Harris v. Newbury, 128 Mass. 321.
The exceptions find "that the injury to the plaintiff came either from her fall upon her husband when the buggy tipped, or from the collision of the buggy with the hack." Upon the relation of the collision to the cause of the injury the court instructed the jury that the defect must be the sole cause of the injury; but by that "the jury will not understand that the plaintiff must prove that her injury was caused solely by her coming in contact with a defect in the highway. The plaintiff's injury, however, must have been caused by contact with the defect, or by a collision of her carriage with another carriage which was inevitable in avoiding that defect. If plaintiff's carriage, by a defect in the highway, was practically forced into collision with another carriage, and that carriage caused her injury, in legal effect the defect caused her injury; but the jury must find, to authorize such conclusion, that plaintiff's carriage would not have come in collision with another carriage, to her injury, if there had not been in the highway a defect at the place of her injury."
If, then, the jury found that the injury was caused by collision with the hack, the jury must have found that the collision was rendered inevitable in avoiding the defect, and would not have happened without it. As the jury must have found that the plaintiff was in the exercise of due care, and that there was a defect in the way which might have been remedied by reasonable care on the part of the town, of which the town seasonably had notice, the question is whether the injury was received "through" the defect, or, in other words, whether the defect was the proximate cause of the injury.
If the plaintiff, in the exercise of due care, had jumped from the buggy to avoid apparently imminent danger from the position into which she had been brought by the defect, and in so doing had suffered the injury, she could maintain the action. Sears v. Dennis, 105 Mass. 311; Williams v. Leyden, 119 Mass. 237; Lund v. Tyngsboro, 11 Cush. 563. If the plaintiff's husband voluntarily turned the horse to the left to avoid the danger of the buggy's tipping over, and this was done under a reasonable apprehension that the buggy would otherwise tip over in consequence of the slope which constituted a defect in the way, and the result was the collision and the injury, the defect would still be considered as the cause of the injury, if the plaintiff and her husband used due care. If the horse turned to the left without any action on the part of the driver, and this was the reasonable thing to be done in consequence of the danger of the buggy's tipping over if he continued on his course, the same conclusion follows. The apparent danger must, of course, be such that the means taken to avoid it are reasonable under the circumstances. If the injury was caused by the combined effect of the defect in the way and of the negligence of the driver of the hack, the plaintiff cannot recover; but this requires that there should be two concurrent operative causes of the injury. Kidder v. Dunstable, 7 Gray, 104; Rowell v. Lowell, Id. 100. In Bemis v. Arlington, 114 Mass. 507, the stones, the sight of which frightened the horse, were held not to be a defect in the way, and if the ridge was a defect it was but remotely connected with the injury.
The third and fourth requests for instructions do not deal with the question which arises if the collision was caused by the use of reasonable means to avoid the danger caused by the defect in the way. So far as these requests were a true statement of the law, they were substantially given in the charge. The plaintiff was permitted to recover only if the defect was the sole cause of the injury; or, if the collision was the immediate cause of the injury, only if it was inevitable in order to avoid the defect, and was "practically forced" upon the plaintiff by the defect, without which the injury would not have occurred.
The instruction given, as applied to the evidence, seems to us as favorable to the defendant as an instruction that if the plaintiff and her husband, using due care as travelers upon the highway, were, by a defect in it, exposed to imminent danger to life and limb, and, as a reasonable precaution to avoid this danger, her husband turned the horse to the left, whereby the buggy was brought into collision with the hack, which otherwise would not have happened, and thus the plaintiff suffered injury, the defect may be considered as the sole cause of the injury.
The plaintiff did not ask for any further instructions upon the nature of the necessity which would justify the plaintiff or her husband in voluntarily incurring the risk of a collision, and we cannot say that the instructions given were misleading. Exceptions overruled.