Bond v. Inhabitants of Billerica

Carroll, J. The plaintiffs, while riding in a Ford automobile driven by the plaintiff Francis D. Bond, were injured on a public highway known as the Boston road in the defendant town. Near the scene of the accident the road turns sharply to the left at a point about one hundred feet from where it enters a bridge which spans the Concord River. Southerly, the highway is built up to the level of the bridge. The automobile was on the right hand side of the road and had just made the curve, when, according to the plaintiff’s testimony, because of the presence of sand and — 121 — loose material in the highway, it suddenly swerved to the left, crossed the highway and went over the embankment into the river, at a point about fifteen feet southerly of the entrance to the bridge. The only cause of action relied on was the absence of a sufficient railing. The jury found for the plaintiffs. The case is before us on the refusal of the court to instruct the jury as requested by the defendant, and to direct a verdict in its favor. The defendant contended that there was no evidence that the highway was unsafe for travel generally, and that the driver had lost control of the automobile. Cities and towns are required to keep their ways reasonably safe and convenient for travel generally, including that undertaken in automobiles as well as in horse-drawn vehicles, and if the ways are safe for travel generally, they are not obliged to make special provision to keep them safe for the passage of automobiles and other machines which were unthought of when the laws imposing the general duty of the care of highways and liabilities for the defects therein, were enacted. A railing may be found to be necessary for the safety of ordinary travel when there is a dangerous declivity near the line of travel. And from all the evidence, including the exhibits, the jury could say that the river was so close to the embankment, and the descent so dangerous, that in the exercise of reasonable diligence a railing should have been provided. Hinckley v. Somerset, 145 Mass. 326. Carville v. Westford, 163 Mass. 544, 557. Thompson v. Boston, 212 Mass. 211. McMahon v. Harvard, 213 Mass. 20. The defendant was not obliged to erect a barrier strong enough to protect an automobile, which might be of great weight when compared with a horse-drawn vehicle, from going over the embankment. All it was required to do was to erect a railing, if a tailing was found to be necessary, which would be a sufficient protection for ordinary travel, or travel generally. Cases may arise where a railing entirely adequate to the demands of ordinary travel might be found incapable of preventing a heavy motor car, moving perhaps at a high rate of speed, from going over the embankment; and a defendant would be under no liability at law to the injured occupants of such a machine. But in the case at bar, the machine was a Ford automobile. There was evidence that it was going at a rate of twelve to fifteen miles an hour, and the jury could say that a railing suitable for the safety of travel — 122 — generally, would have prevented the car and its occupants from injury. See Doherty v. Ayer, 197 Mass. 241; Sawin v. Connecticut Valley Street Railway, 213 Mass. 103, 106; Kelleher v. Newburyport, 227 Mass. 462. It cannot be said as matter of law that the driver’s loss of control was more than momentary. He testified that about twenty or twenty-five feet from the place where he went over the abutment, while the left wheels were in the asphalt the right wheels struck the soft dirt and loose sand; that the car began to skid and he at once threw out the clutch and applied his brakes, but could not stop his car in less than thirty or forty feet; and that the roadway was so narrow, he could not stop the car before he reached the abutment. It was for the jury, under all the circumstances shown in the evidence, to decide whether the machine was beyond the permanent restraint of the driver and that he had no control over it; or, that the loss of control was merely momentary, where, under ordinary circumstances, the power to manage the machine could be regained. McMahon v. Harvard, supra. Hinckley v. Somerset, supra. The defendant’s request was not given in words, but all that was asked for was fully covered in the judge’s charge. The exceptions should be overruled; and judgments on the verdicts are to be entered for the plaintiffs. So ordered.