Hodgkins v. Inhabitants of Rockport

Colt, J. The question whether a hole in a culvert, covered with a flat stone, is so covered as to make the highway safe and convenient for travel, is a practical question of fact, depending on a variety of considerations. The size of the hole; its location, with reference to the line of public travel; the weight and shape of the stone, with the means employed to keep it in place; its liability to displacement by accident or design, or by the public travel over it, are all to be taken into account. It was submitted to the jury in this case with careful and accurate instructions, under which they must have found that the way was defective as [576] it existed, with the hole covered as it was, or, in other words, that the means adopted to secure the safety of the travel upon the highway were not sufficient. It is not true, as contended by the defendant, that the only fact which tended to prove the existence of the alleged defect was the fact that the stone, at the time of the accident, happened to be displaced. A perfect bridge or a perfect culvert may become dangerous by a careless or malicious act, without liability on the part of the town, except when the defect produced has existed for twenty-four hours, or there has been notice of it. There is nothing to show that the jury thought otherwise in this case. Myers v. Springfield, 112 Mass. The case at bar is not like Doherty v. Waltham, 4 Gray, 596. There the jury were told that a town would not be liable for an injury to a traveller in the night-time from a hole in the highway, if at sunset sufficient barriers were placed around it to make it safe for the night, although the barriers were afterwards removed, whether by accident or design. The jury must have there found that the means adopted to secure safety were sufficient. Nor is this case controlled by Ryerson v. Abington, 102 Mass. 526, 532. The defect in that case arose from the caving in of a sluiceway, the original construction of which was alleged to have been imperfect, and the question was one of immediate and remote cause. The judge was asked to rule, upon evidence which was thought to justify the request, that the jury must find “ that the immediate and particular defect which was the immediate and proximate cause of the injury either had existed twenty-four hours, or that the town had had reasonable notice of it.” He refused so to rule, but told the jury that if there was a defect in the original construction, by which the earth was liable in a freshet to be washed away so as to produce the cavity which existed, “ and to indicate such a state of things as the natural consequence,” the plaintiff might recover. A new trial was ordered by this court on account of other rulings on questions of evidence, and the general rule was stated that the defect complained of must be the immediate cause of the injury; but the court expressly declined to consider whether the instructions given to the jury, justly interpreted, were in accordance with this rule. In the opinion of a majority of the court, the entry in the present case must be Judgment on the verdict.