Whitford v. Inhabitants of Southbridge

Devens, J. It is well settled that in an action of this nature it is not sufficient for the plaintiff to show only that she was injured while walking in the highway and using due care, but that it must further appear that the injury was caused solely by a defect in the way. Babson v. Rockport, 101 Mass. 93. Bemis v. Arlington, 114 Mass. 507. The instruction requested by the defendant, that “ the plaintiff cannot recover unless she further satisfies the jury that the injury which she sustained was caused by a defect in the way without fault on her part,” did not, however, call the attention of the presiding judge to this familiar rule of law, but only to the question of contributory negligence on the part of the plaintiff. As thus requested, it was substantially given by the ruling that if the want of due care on the part of the plaintiff “ contributed in any degree to the injury, she cannot recover, though it would not have occurred except for the omission of the town to perform its duty.” The necessary inference was that the plaintiff was to recover, if at all, on account of the occurrence of the injury from a defect in the way existing by reason of the neglect of the town to perform its duty. Both the instructions requested, and those given in reply to them, relate mainly to the liability of the defendant for the condition of that part of the way where the injury occurred and to its responsibility for defects therein. This part of the way [574] was a path within the limits of the highway, hut outside of that portion wrought for carriage travel; and if the instructions were correct and there was no deficiency in them, the defendant has no ground of complaint. The evidence which tended to show that this path was unsafe and that1 the plaintiff was walking carefully, would warrant the jury in finding that while using due care the plaintiff was injured by reason of the defect in the way. These instructions, which were largely in the language used in the opinion of this court in Weare v. Fitchburg, 110 Mass. 334, submitted as a question of fact whether there had been an adoption and recognition by the defendant of this path as a por- , tian of the wrought and finished track so that the town would be liable for defects therein. The jury were to take into consideration the position and character of the path, its relation to the main wrought road, the length of time it had been in its then situation, the public notoriety of the facts, and were to determine whether by long continued public use, with the knowledge and acquiescence of the defendant, it had been thus adopted and recognized. From the nature of the case it would not have been possible to have given an exact rule as to the relation the path should have been shown to bear to the main wrought road, or the amount or character of its use, in order to render the town liable. The use which, in connection with other facts, was to furnish evidence of such recognition, was sufficiently defined as a “long continued public use.” Instructions were asked substantially to the effect that if the condition of the ledge (where the path was situated) was such as to inform all persons that it was unsafe, the mere fact that a large number chose to go over it would not oblige the town to make it safe; also, that if a large number of persons chose, for the purpose of shortening their route, to pass over a portion of the road not safe and not designed nor adapted for public travel, the jury could not infer from that use alone a holding out of such portion for travel; and further that if persons, who knew the character of the street and had reason to know that it had not been appropriated to public use, saw fit to use and did use it for public travel, the town would not be liable to make it safe and convenient, merely because this was done. These requests [575] were properly declined. So far as appears by the bill of exceptions, there was no evidence as to the motives or knowledge of those who used this path, nor did the plaintiff rely on the mere fact of any such use as was thus stated. The presiding judge could not have been properly asked to rule that a portion of the evidence did not sustain the plaintiff’s case. The .almost necessary effect of such instructions, if given, would have been to draw the attention of the jury from the inquiry whether this was a travelled path within the limits of the highway held out by the defendant to the public as intended and designed for travel and was so used with the knowledge and acquiescence of the town. All the circumstances attending this use were proper to be considered in connection with this question. The defendant contends that the instruction requested, that the jury were at liberty to find that the act of going upon this dangerous way was in itself an act showing a want of due cáre, was not given, but in place thereof only a ruling that greater care was required where defects were known. This suggestion is, however, erroneous. The jury were told that “ if, with her knowledge, the plaintiff did not exercise due care and prudence either in entering upon the way, or in her proceeding thereon after she had entered,” she could not recover. This certainly left the jury to determine whether there was any want of due care in going upon the way. ^Exceptions overruled.