Hinckley v. Inhabitants of Somerset

Field, J. This is an action to recover damages for an injury received through want of a sufficient railing in or upon a highway, on the ground that the defect might have been remedied, or the injury prevented, by reasonable care and diligence on the part of the town. The damages are recoverable from the town by law obliged to repair the way, if it “ had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence ” on its part. Pub. Sts. c. 52, § 18. It was contended that the railing was insufficient because it was not of proper height. The second and third requests for instructions ought not to have been granted if the railing was insufficient, and the plaintiff did not lose control of the horse, [336] and if the injury would not have been received if the railing had been sufficient. The instructions given relating to the fact that the horse became frightened, and the effect of this upon the plaintiff’s right of action, were correct. Stone v. Hubbardston, 100 Mass. 49, 55. Babson v. Rockport, 101 Mass. 93. Britton v. Cummington, 107 Mass. 347. Wright v. Templeton, 132 Mass. 49. The fifth request ought not to have been granted. It was the duty of the town to keep the way “ reasonably safe and convenient for travellers;” Pub. Sts. c. 52, § 1; and to put up a sufficient railing or barrier, if the barrier constructed by the commissioners was not sufficient, and if a railing or barrier was required to make the way reasonably safe. The seventh request ought not to have been granted, because, if the wall was insufficient, and the way not reasonably safe, it was not necessary that the horse “ should go over the wall ” in order to enable the plaintiff to recover. If the injury was received because the wall was not high enough, and the want of height made it insufficient as a railing or barrier, the plaintiff could recover, if the horse was a reasonably safe horse- to drive, and if the plaintiff was in the exercise of due care and did not lose control of the horse, or lost control for a moment only, and either regained the control or would have regained it before the horse would have run against the wall, if it had been of sufficient height. If the injury would not have been received if the wall had been of sufficient height, and this want of height rendered the way unsafe, then the insufficient wall was the immediate cause of the injury. We do not know that the plaintiff’s horse would have run against the wall if it had been of sufficient height, and this defect in the height of the wall may have been the sole cause of the injury. We think that there was evidence for the jury of all the facts necessary to be proved, and that the court rightly refused to direct a verdict for the defendant. It appears that certain evidence was introduced “solely on the question of notice,” which means notice to the town of the height of the wall and of the condition of the way. If the wall was insufficient and the way unsafe, it is immaterial what the authorities of the town thought about it, if they knew the facts. [337] Notice of a defect is notice of that condition of things which constitutes a defect, although the authorities of the town may think that it does not constitute a defect. This wall was a permanent structure, built in 1854, and was rebuilt and raised about six inches in height in 1885 by the highway surveyor of the defendant town. The plaintiff was injured on May 29, 1886. If the wall was insufficient as a railing or barrier, we have no doubt that, on the undisputed facts, it must be held, as matter of law, that the town either “ had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence ” on its part. The wall was a structure which was visible and conspicuous, and had existed for so long a time that the town ought to have known its condition and height, and ought to have known that it was insufficient, if in fact it was insufficient. Besides, the fact that the wall had been rebuilt in 1885 by the highway surveyor of the town, and remained in the same condition as when rebuilt by him, was equivalent to notice to the town of its condition and height. “ There is no occasion to prove actual notice to a city or town of its own acts, or of acts which are constructively its own.” Monies v. Lynn, 119 Mass. 273, 275. Brooks v. Somerville, 106 Mass. 271. In Donaldson v. Boston, 16 Gray, 508, 511, it was said: “ Mere proof of notice to one or more of the inhabitants does not establish the requisite notice, because it is not their duty to repair the defect or remove the obstruction. The facts must be such as to lead to the inference that the proper officers of the town, whose duty it is to attend to municipal affairs, did actually know of the existence of the defect, or with proper vigilance and care might have known it. Such knowledge may be inferred from the length of time during which the defect has existed, from the central position and publicity of the place where it exists, and any other circumstances which tend to show its notoriety.” This is the rule of law under existing statutes. Hanscom v. Boston, 141 Mass. 242. The evidence of Dr. Shurtleff was admitted, not “ as tending to show that there was any defect, or that there had been any accident,” but “ as bearing on the question of notice to the authorities of the town,” and it appears that there was other testimony of the same kind. The presiding justice carefully limited [338] the relevancy of this evidence to “ the question of notice.” We think that conversations about an accident or a defect in a way, between persons no one of whom is an officer of the town, is not competent evidence to show notice to the town, although the conversations may have been had between many different persons. It cannot be inferred that the conversations were heard by other persons than those shown to have heard them. Whether a public notice of a defect in a highway by advertisement in a newspaper or in some other public manner, would be evidence to the town, need not be decided. The evidence, therefore, was inadmissible for the purpose for which it was received, and it is clear that it was not admissible for any other purpose. But the evidence was admitted to prove a fact which it was unnecessary to prove, if the other facts we have referred to had been proved or admitted, and the exceptions so recite. Exceptions will not generally be sustained because incompetent evidence has been received to prove a fact which the conceded facts necessarily establish. The real complaint is, that the evidence tended to prejudice the defendant with the jury, because, however careful the instructions of the court may have been, the jury would be likely to consider the evidence of a previous accident as evidence that the defendant was in fault, and ought to have repaired the way. There is some force in this, and it would undoubtedly be within the power of the court to sustain these exceptions on this ground, if satisfied that injustice had been done; but we are not satisfied that injustice has been done. Exceptions overruled.