Purple v. Inhabitants of Greenfield

Holmes, J. 1. The request for a ruling that the town could not recover over from the owner or occupant was made to the court upon a different ground from that on which the defendant now seeks to support it. It was asked for in aid of the defendant’s argument to the jury, that it was hard that the town should have to pay for the fault of the owner of the premises, when the plaintiff might have sued him, and the town could not. From this point of view, the consideration was one with which the jury had nothing to do. But the defendant now says that the instruction should have been given as adding to the weight of the owner’s testimony, and counteracting the effect of his answer to the plaintiff’s cross-examination, that he 7 had been notified to defend the suit. If this contention is open to the defendant, it seems to be enough to say that, in this aspect, the only material question was whether the witness believed himself to be liable, not whether he was liable in fact; that the collateral issue of his liability could not be tried in this suit; and that it was not the duty of the judge to rule on an issue which could not be tried. Fish v. Bangs, 113 Mass. 123, 126. We therefore need not consider whether, in view of the mode in which the owner had built the sidewalk, the ruling asked for was correct in point of law. Howland v. Vincent, 10 Met. 371. Larue v. Farren Hotel Co. 116 Mass. 67. Woburn v. Boston & Lowell Railroad, 109 Mass. 283. 2. There was evidence, not merely that the town had reasonable notice, or by the exercise of proper care might have had notice, of a hole which the jury might find was insecurely guarded, within the principles of Winn v. Lowell, 1 Allen, 177, Hodgkins v. Rockport, 116 Mass. 573, and Monies v. Lynn, 121 Mass. 442, and 124 Mass. 165, but also that the hole had been uncovered for a long time. The court could not forbid the jury to infer the latter fact from Pierce’s testimony, that he went by the spot daily, and never saw the openings covered till after this suit was begun. Pierce’s admission, on cross-examination, that he had no clear recollection of the matter, was ground for argument as to the trustworthiness of his former statement, but did not obliterate it. 3. We cannot lay it down as a universal proposition that any and every use of any kind of velocipede upon the sidewalk is unlawful. See Regina v. Mathias, 2 F. & F. 570. The instructions given are only excepted to so far as inconsistent with the rulings requested. Exceptions overruled.