Thompson v. Inhabitants of Bolton

Rttgg, J. The place where the plaintiff was injured was on a little travelled back road. There were three houses on it in one of which the plaintiff lived. There was no evidence that it had ever been laid out as a highway, but there was evidence that it had been used for more than twenty years as a way, that its side lines were marked by walls, and that repairs had been made upon portions of it by officers of the defendant within six years. The plaintiff had been using the road frequently, and knew of the place where the injury occurred for about two years. Her description of the accident was as follows: “It was about nine o’clock in the morning . . . May 7, 1901. I saw two wood teams coming and I turned out, waiting for these to pass, and then started on; and as I came towards the dry bridge, ... I had to swing to the right to avoid a stone, and immediately to the left again. As I swung to the left I thought of a place on my left where I had got the wheel caught once before and immediately bore to the right. I tightened the reins quickly and the horse sprang forward and drew me on to and over this stone. . . . The wheel went down over the stone and I was thrown. , . . The first stone . . . was where the water had gullied out and left this rock uncovered. . . . The first stone . . . was uncovered up to about that height, a rough guess, six or seven inches;' . . . it Was a rough stone. I do not know whether that stone formed one of the covering stones of the dry bridge or whether it was a boulder at the side of the dry bridge. It was close to it. . . . There was only a point up in the road ... in the wheel rut. The stone . . . over which the wheel went . . . was a large upright stone. I should say a boulder that had been in the road and the gravel had been washed away to the depth [313] of a number of inches. It was at the right of the wheel rut, close to the wheel rut. . . . From the top of that stone to the ground I should say was seven or eight inches if not more.” This showed a condition of the road, which the jury might have found to be defective. This is not a case of a single stone just outside the travelled way six or eight inches high, but of a combination, within a short distance, of a sharp stone jutting into the wheel rut and a place where a wheel was likely to get caught and the stone against which the wheel struck. Rust v. Essex, 182 Mass. 313, is therefore to be distinguished. This combination of circumstances, together with the location of the road, the amount of travel upon it, the length of highway which the town was required to keep in repair, its valuation and the amount available for expenditure upon highways were all proper subjects for consideration by the jury in determining whether a defect existed. Cammett v. Haverhill, ante, 76. It was also a question of fact whether the defect had existed such a length of time that the town might reasonably have had notice of it. It could not be ruled as a matter of law that two years was insufficient, even giving full force to the contentions of the defendant as to the remoteness of the way and the little travel upon it. The plaintiff knew the existence of the defect, but she was obliged to use the road as it was her only means of egress from home. Mere knowledge of a defect, even when combined with opportunities for observation afforded by daylight, is not conclusive evidence of negligence. Cutting v. Shelburne, 19 Mass. 1. Keith v. Worcester & Blackstone Valley Street Railway, 196 Mass. 478. There was evidence that the plaintiff was conscious of the danger, and had her mind actively directed to its avoidance at the time of the injury. All these and other circumstances were properly left to the consideration of the jury, whose province it was to draw the inference, either of due. care or neglect, which in their sound judgment seemed reasonable. The nature of the defect and the testimony of the plaintiff as to her thought and conduct at the time of the accident distinguishes this case from Gilman v. Deerfield, 15 Gray, 577, Wilson v. Charlestown, 8 Allen, 137, and Casey v. Fitchburg, 162 Mass. 321, and bring it rather within the principle of [314] Kelly v. Blackstone, 147 Mass. 448, Powers v. Boston, 154 Mass. 60, Torphv v. Fall Fiver, 188 Mass. 310, and Campbell v. Boston, 189 Mass. 7. Exceptions overruled.