Tisdale v. Inhabitants of Bridgewater

Barker, J. The part of the cellar hole, into which the rear end of the carriage went, was only four feet from the line of the street, and only twelve feet from the carriage path, while another part of the hole was still nearer, less than two feet from the street line. The horse, startled by a whip with which the driver of a passing team struck his own horse, backed suddenly, but was stopped with the rear end of the carriage in the hole, the forward wheels just outside the edge of the sidewalk, and the horse standing across the sidewalk. It was not an instance of straying from the highway, and, as the instructions given were not objected to, we must assume that the jury found that the occurrence was one which might reasonably be expected to happen with a horse fit to drive, but momentarily frightened, that there was but momentary loss of control, that the cellar hole exposed to danger a team properly travelling over the part of the road wrought for carriage travel, and that the accident would have been prevented by a suitable railing, There is no doubt as to the test to be applied, which is whether there was a dangerous place so near the line of travel that travellers were likely to be injured by it while using the way. None of our decisions have held an excavation or sharp descent so near a street not sufficiently near to permit a finding that the absence of a railing was a defect. In Logan v. New Bedford, 157 Mass. 534, the bank wall was between five and six feet from the street line, and connected two houses twenty or twenty-five feet apart, while there were steps projecting from the houses to the street line, and the wall itself was back of the house fronts. In the present case, in the opinion of a majority of the court, it cannot be said, as matter of law, that in the view of the evidence most favorable to the plaintiffs the risk was so small that it would be unreasonable to require the town to provide a railing. Scannal v. Cambridge, 163 Mass. 91. Exceptions overruled.