Little v. Inhabitants of Brockton

Colt, J. The plaintiff drove his horses and loaded wagon out of the travelled path of the highway into a ditch two and a half feet deep, containing some six inches of mud and water. The highway upon which he and his wife were travelling was without railing, but was constructed twenty-six or twenty-seven feet wide for the use of carriage travel, and was for this entire distance even, smooth and hard. The plaintiff having, as he testifies, the guidance and control of his horses, and having been warned by his wife that he was in danger of going off the bank, drove in the daylight so, near the edge of this road, that in order to prevent going over sideways, as he says, he turned his horses square off the bank, and received the injury complained of. For this voluntary act of the plaintiff, the evidence discloses no sufficient excuse. There is nothing in the circumstances of [515] the case which would justify a jury in finding that it was an act of ordinary care and prudence, which, without his fault, had become necessary to protect himself or his horses and wagon from greater danger. There is no reason shown for driving with horses, of which the plaintiff had control, so near the edge of the road. He claims that, being in that position, he found himself so near the bank that he could not stop without going off, and that two alternatives were presented to Mm, either to run into an approaching wagon, or to turn off as he did. But his position so near the bank was through his own want of due care, for which no excuse is shown, and being there he must choose either alternative at his own risk. A party cannot relieve himself from a dangerous position into which his own fault has brought him and hold the town responsible for the result. Mayo v. Boston & Maine Railroad, 104 Mass. 137. Gaynor v. Old Colony & Newport Railway, 100 Mass. 208. It is not necessary to consider whether the want of a railing constituted a defect, or whether this accident would have been prevented if a suitable railing had been erected at this point. Judgment for the defendant.