Talbot v. City of Taunton

Gardner, J. The case finds that Fourth Street, within the limits of which the injury to the plaintiff’s omnibus happened, was a public highway, which the defendant was bound to keep [555] in repair; and that the same was laid out and accepted as a public highway by the city council of Taunton, on December 14, 1870. After the evidence was closed, the defendant asked the court to rule that, upon the evidence, the plaintiff could not recover. It is now contended that the street was not legally laid out; that, under the statutes then in force (Gen. Sts. e. 63, § 59), the mayor and aldermen, before laying out a way across a railroad, should apply to the county commissioners for permission to do so; and that, after certain proceedings by the commissioners, they might authorize the mayor and aldermen to lay out the way. Inasmuch as it appears from the bill of exceptions that Fourth Street was a public highway, which the city was bound to keep in repair, and as the point now raised was not brought to the attention of the court at the trial, it is too late to raise the question here. In addition, as this street was laid out and accepted by the city, in the absence of evidence to the contrary, we are to presume that the city council did all required by the statutes properly to lay out the highway. The defendant contends, upon the evidence, that the plaintiff has failed to show that, at the time of the injury, he was in the exercise of due care. We think that the court could not determine this question as matter of law; and that it was properly left to the jury. The facts that the driver had never before been upon this street with the omnibus; that the night was quite dark, although not so dark but that he could see the bridge as he approached it; that the omnibus was loaded with passengers, with some of whom he was talking; that he paid no attention to the bridge; that he was driving in the middle of the travelled way at the rate of six miles an hour; that, although he had driven ordinary carriages under the bridge, he had never noticed that it was too low; and that an ordinary carriage went through all right, — together with the other evidence bearing ■upon this question of his due care, — were facts and circumstances to be weighed by the jury, in determining whether the driver did, in fact, use proper care in driving under the bridge, or whether, in so doing, he was reckless and careless. Mayo v. Boston & Maine Railroad, 104 Mass. 137. It is urged by the defendant, that the evidence brings the case at bar within that of Gilman v. Deerfield, 15 Gray, 577. But [556] there is a marked distinction between them. In the latter case the plaintiff knew of the defect; he had driven over it before carefully and slowly, because he did not consider it safe; the defect was plainly visible as he approached it, driving a quick and high-spirited horse; and, as he approached the defect, he did not think of it, as his mind was wholly absorbed in thought concerning his professional business. In the case at bar, the driver had driven over the road, but had no knowledge of any defect therein. He was driving apparently at a proper gait, and with safe horses. The knowledge of the defect and of its danger, and the driving into the defect without thinking of it, mark the difference between the two cases. The defendant also contends that it is not liable for the defect ; “ and that it is not such a defect that the defendant could have removed it by the use of ordinary care.” In 1865, upon the petition of the railroad corporation, the county commissioners decreed that said Fourth Street should be passed by the railroad by a bridge, without any change in the grade of the street; and that the bridge “ be made eleven feet in the clear above the. grade of said road.” In 1870, when the street was laid out, and accepted as a highway by the city, no change of grade was provided for. At the time of the injury, the surface of the street was eight feet eight and one half inches below the bridge. There was testimony from the superintendent of streets of the city, that the grade of the street under the bridge could be lowered a foot, and the water disposed of by a drain to the river. Upon this evidence, the court could not have ruled, as matter of law, that the height of the bridge over the surface of the way did not make the way defective. If the railroad bridge alone constituted the defect, the city was not liable. The city was responsible, if the grade of the street under the bridge was raised, (and the city had notice of it,) so that passengers could not pass under it safely and conveniently. The raising of the surface of the street, thereby rendering the way defective or out of repair, in view of the height of the bridge over it, would constitute a defect under the statutes. Pub. Sts. c. 52, §§ 1, 18. In such case, the bridge is not the defect, but the way itself becomes defective and out of repair, because, its grade being [557] raised, its surface is brought so near the bridge as to render travel in the street unsafe, inconvenient, and dangerous. In view of the testimony of the superintendent of streets, the court was not required to rule that the defendant city could not have removed the defect by the use of ordinary care. The court rightly declined to rule as requested. No exception was taken to the instructions given to the jury. Exceptions overruled.