Ghenn v. Inhabitants of Provincetown

Morton, J. 1. The first exception is to the admission of the testimony of the male plaintiff, as to holes in the sidewalk other than the one testified to by his wife as being in front of the house of Widow Eldridge Nickerson. We have not before us a report of the evidence at the trial, and it is difficult from the bill of exceptions to see the precise aspect of the case with reference to which this testimony was offered. It may have been offered upon the ground that the holes testified to by him were the defect which caused the injury, and that his wife was mistaken in its location. Such mistaken testimony would not preclude the plaintiffs from showing that the defect was in fact elsewhere. Or it may have been offered upon the ground that, there being several holes near each other, it was impossible, from the darkness of the night or some other cause, to tell which of them caused the injury. Upon either ground the testimony would ba admissible. As the bill of exceptions does not show that the tes [316] timony was improperly admitted, tins exception must be overruled. Milk v. Middlesex Railroad Co. 99 Mass. 167. Hewes v. Hanscom, 10 Gray, 336. 2. The only other exception which was argued is to certain instructions of the presiding judge to the jury. There was conflicting testimony as to the size of the hole which caused the injury. The defendants asked the court to instruct the jury, that, if they were satisfied that the defect complained of was of the kind and dimensions testified to by the defendants’ witnesses, the town was not liable. The court refused this request, but instructed them “ that it was a question for the jury whether there was a hole in the sidewalk, and whether from its size and location it was a defect; that if the evidence satisfied them that there was no hole there of sufficient size to be the cause of the accident or injury to the female plaintiff, then the plaintiffs had failed to prove any defect; but if the jury were satisfied that the accident happened to the plaintiff on account of a defect in the walk, then without regard to its size the defendants would be liable for the injury to the plaintiff, if such defect had existed twenty-four hours or more before the accident, and the plaintiff was herself in the exercise of due care at the time.” The instruction requested was properly refused. It was a question of fact for the jury under proper instructions, whether the size and location of the hole were such as to make the road defective. The only doubt is, as to the correctness and sufficiency of the instructions given upon the point embraced in the request. If we are to assume that the instructions above cited were all the instructions given to the jury upon the question of a defect, they would be open to objection, because they might lead the jury to infer that any hole which was large enough to cause the accident would render the town liable. This would not be a correct statement of the law. There may be holes or obstructions in a road which cause an injury to a traveller, but which are not defects. It is for the jury to decide, upon all the evidence, whether the obstruction proved is of such a nature as to render the road dangerous for travellers, and the fact that the plaintiff has been injured on account of it does not necessarily show that it is a defect. But this bill of [317] exceptions does not purport to set forth all the instructions given at the trial, but only those which were applicable to the particular subject embraced in the defendants’ request. It is to be presumed that full and correct instructions were given as to what must be proved in order to make a road defective. In this view, it is not a .fair construction of this bill of exceptions, to say that the instructions authorized the jury to hold the town liable merely because there was a hole large enough to cause the accident. They required them to find that the accident to the plaintiff happened on account of a defect in the walk, and they must have found that the hole proved was of such character and loco tian, whatever its size, as to make the sidewalk dangerous to travellers using due care. For these reasons a majority of the court is of opinion that this exception cannot be sustained. Exceptions overruled.