Yeaw v. Williams

Dureee, C. J. First. We think the question, whether tbe town was chargeable witb culpable neglect in leaving the post where it was before tbe plaintiff was injured by it, was a question of fact for tbe jury. Doubtless a hitching-post might be located near tbe travelled part of a road, and just out of it, in a position where it would be so unexposed or so protected that tbe town would evidently not be at fault for leaving it there, and that tbe court might properly so instruct tbe jury. Tbe case *21 at bar was not such a case. In the case at bar the plaintiff’s testimony tended to show that the post complained of was the middle one of three, and stood eighteen inches further out into the road than the other two; that the road was level from fence to fence except a shallow gutter, and was travelled throughout its width except where the posts were; that the plaintiff was driving in the dark at night, keeping well to the right, i. e. the side of the posts, for fear of running into something; that a team coming up behind started his horse quickly, and that while he was engaged in reining in his horse he collided with the post. The plaintiff testified that he had long been familiar with the posts, and had had to look out for them even in the daytime. On the other side, testimony was submitted to show that the posts stood on a portion of the highway intended for and used as a sidewalk, at the edge of which there was a gutter four or five inches deep; that the road curved a little at the posts, which made the middle post appear to be further out than the other two; and that the wrought or travelled part of the road was about twenty-seven feet wide at the posts. In view of this testimony, and especially in view of the testimony that the middle post was eighteen inches further out than the other two, or on a curve where it would be more exposed, we are not prepared to say that the verdict was against the evidence. It is not enough that there was ample room for travel within the post if the post was so situated with reference to the general course of travel as to be dangerous and require unusual precaution. Snow v. The Inhabitants of Adams, 1 Cush. 443; Chamberlain v. Enfield, 43 N. H. 356; Cassedy v. Stockbridge, 21 Vt. 391; Willey v. Portsmouth, 35 N. H. 304. Indeed, a post may be a dangerous defect even when it is entirely out of the limits of the highway. Coggswell v. The Inhabitants of Lexington, 4 Cush. 307; Warner v. Holyoke, 112 Mass. 362; Hayden v. The Inhabitants of Attleborough, 7 Gray, 338. In Macomber v. City of Taunton, 100 Mass. 255, cited for the town, it did not appear that the post which caused the accident protruded beyond the others, or that there was any bend in the road ; and the court, moreover, which sustained the nor suit, seems to have been a good deal influenced by a Massachusetts statute, which expressly provided that in the towns the owners of *22 adjoining land, and in the cities the municipal authorities, might construct sidewalks, indicating their width by trees, posts, or curbstones, set at reasonable distances apart, or by a railing erected thereto.” Second. The defendant contends that the post was only a concurring cause of the accident, the primary cause being the running of the plaintiff’s horse, and that therefore the plaintiff ought not to have recovered a verdict. The question of concurring causes was a question for the jury, under proper instructions from the court, which we must presume were given. We therefore cannot set the verdict aside unless it is palpably against the evidence. We do not think it is so. It does not appear that the person who came up behind the plaintiff was in any fault, or that the plaintiff was at fault in his driving; and the mere fact that the plaintiff’s horse broke into a quick trot, or even into a run, would not necessarily defeat the plaintiff’s right to recover, if the horse did not escape his control, or started from it only for the moment. Stone v. The Inhabitants of Hubbardston, 100 Mass. 49; Babson & Hartwell v. The Inhabitants of Rockport, 101 Mass. 93. Third. The surveyor of the highway was called as a witness by the town, and testified in behalf of the town that in his opinion the situation of the post was not such as to make the highway unsafe or out of repair. In cross-examination he was asked if he did not order the post removed. The question was objected to, allowed, and exception taken. The witness answered that he did. The object apparently was to discredit the witness by showing that his conduct was inconsistent with his testimony; for, as the matter would be put to the jury, if that witness honestly thought the post was no defect, why should he remove it ? In this view we do not think the admission of the testimony affords ground for a new trial; though, if the testimony had been offered by the plaintiff as testimony in chief for the purpose of proving that the post was a dangerous defect, we think it should have properly been excluded. Cramer v. City of Burlington, 45 Iowa, 627. Fourth. Another highway surveyor was called by the town to testify as an expert that in his opinion the highway was safe, convenient, and in good repair at the place of the accident when the *23 accident occurred. The testimony was objected to and rejected. We think it was rightly rejected. The question regarding the alleged defect was not a question of science or expert skill. It was a plain question of fact for the jury to decide, under instructions from the court, in view of the particular circumstances of the case. Petition dismissed. Page Sf Owen, for plaintiff. Dexter B. Potter, for defendant.