Burditt v. Inhabitants of Winchester

Morton, J. There was evidence warranting a finding that the plaintiff was in.the exercise of due care. The street was [496] open to travel, and the plaintiff was riding his bicyle at a moderate speed and had no reason to apprehend that there was any obstruction or defect in the highway. There was testimony to the effect that the horse could be seen one hundred' and fifty feet away. But there was also testimony that it could not be seen until one was close to it. In this state of the evidence it plainly was for the jury to say whether the plaintiff in the exercise of due care should have seen the horse in time to avoid a collision with it. It is not seriously contended that the unlighted horse did not constitute a defect in the way. The jury were rightly instructed that the town would not be liable for negligence on the part of one of the men employed in making the repairs in failing to remove the horse or in leaving it unlighted, and that in order to hold the town liable it must have had notice of the defect in time to have enabled it in the exercise of reasonable care to remove it before the accident. But the town was doing the work through a superintendent appointed by its selectmen, pursuant to R. L. c. 25, §§ 85, 86, and through men employed by him. The town had therefore notice by its servants and agents of the manner in which the work was being done, and if, in the course of doing the work, any of its servants or agents caused a defect in the way, the town must be deemed to have had notice thereby of the defect so caused. The act must be regarded in such a case as having been the town’s own act, and as such it needed no notice of it. Brooks v. Somerville, 106 Mass. 271. Hinckley v. Somerset, 145 Mass. 326, 337. Stoddard v. Winchester, 157 Mass. 567, 574. Pratt v. Cohasset, 177 Mass. 488, 490. McCarthy v. Dedham, 188 Mass. 204, 208. Independently of that we do not think that it could have been ruled as matter of law that the selectmen or the superintendent should not in the exercise óf reasonable care have known of the defect. The place of the accident was a mile and a half from the centre of the town, but the street was a main thoroughfare, macadamized, with an electric railway upon it and electric lights, and with houses in the vicinity; and apparently there was considerable travel over it. The fact that the horse was in use was or easily might have been known, and the jury may well have thought that although [497] the defect had existed but a short time, nevertheless in the exercise of proper precautions by inspection or otherwise, after the men had quit work at night, the fact that the horse was there and was unlighted would have been discovered; in other words, that the town authorities, in the exercise of reasonable care should have known of the defect. Under such circumstances it could not, as already observed, have been ruled as matter of law that the town was not liable. We see no error in the manner in which the trial was conducted. Exceptions overruled.