Lyman v. Inhabitants of Amherst

Mobtoít, J. The court is of opinion that the instructions given at the trial were sufficiently favorable to the defendants. The evidence tended to show that, while the plaintiff was travel-ling over a steep road in Amherst, his horse, either by stepping on a rolling stone, or because of the soft and yielding character of the road-bed, for a moment lost the control of his load, and was drawn backward, by its weight, over the banks of the road. The alleged defect was the want of a suitable railing .at the place where he went over. Under the instructions, the jury were re [346] quired to find that the plaintiff had a manageable horse, without any fault or vice which contributed to the accident; that the load ,was suitable; that the horse was not at any time beyond the control of the driver, except momentarily; that the plaintiff was in all other respects in the exercise of due caré ; that the road wan defective for want of a suitable railing; and that such defect had existed for more than twenty-four hours, and was the sole cause of the injury. Upon these facts it is clear that the town is liable. Balson v. Rockport, 101 Mass. 93. The defendants presented thirteen prayers for instructions. The presiding judge adopted the second, eighth and ninth, and refused the others. We think such refusal was right. 1. The fact that the plaintiff was acquainted with the road does not necessarily prevent his recovering, and the court properly left this fact, in connection with the other evidence, to the jury, to be by them considered upon the question of due care on the part of the plaintiff. Frost v. Waltham, 12 Allen, 85. 2. The third, fourth and fifth prayers relate solely to the question whether the road-bed was defective. We do not see that this question was material. Whether the road-bed was defective or not, the town would be liable upon the other facts which the jury were required to find under the instructions. Babson v. Rockport, 101 Mass. 93. 3. The instructions given upon the subject embraced in the sixth prayer were in conformity with the decision in Babson v. Rockport. 4. The instructions given required the jury to find that the load was a suitable one, and thus adopted, in substance, the seventh prayer. 5. In answer to the tenth prayer, the court correctly stated the rule to be, that “ the town was bound only to provide a railing suitable for the ordinary exigencies of travel upon such a road at such a place.” Whether such a railing would resist and stay a team loaded as this was, was a question of fact for the jury. 6. The proposition stated in the eleventh prayer cannot be sustained as law. We have already seen that upon the facts of this case, as found by the jury, the town is liable. [347] 7. The last two prayers involve questions of fact which are for the jury. It was for them to determine whether there was any loss of control of the horse, and if so, whether it was momentary.. There was some evidence upon this, and upon all the other issues in the case, which was properly submitted to the jury. Upon the whole case, we are of opinion that the defendants were not aggrieved by any of the rulings or refusals to rule at the trial. Exceptions overruled.