Way, Defect in highway. Negligence. The absence of suitable railings or barriers at the sides of a bridge over a brook, the bridge being thirty feet long and thirteen and a half feet wide between stringers eight inches high on each side and forming a part of the main highway between two towns, can be found to be a defect in the highway.
In an action against a town for personal injuries and for damage to a horse and buggy from an alleged defect in a highway, if it appears that the plaintiff, while crossing a bridge only thirteen and a half feet wide which he knew well and knew to be without suitable railings, was driving a blind horse, gentle and not in the habit of stumbling, at a slow trot with the reins in his left hand and was using his right hand to tuck in the lap robe, when the horse stumbled and jerked the reins, the plaintiff grabbed the reins with his right hand and in an instant the plaintiff with his horse and buggy went over the side of the bridge into the brook below, it is a question for the jury whether the plaintiff was in the exercise of due care.
BRALEY, J.
A refusal to rule at the close of the evidence that these actions could not be maintained raises the questions of law presented by the exceptions. They are, whether the plaintiffs' injuries were caused by want of a sufficient railing upon the bridge which formed part of the highway, thus causing a defect which might have been remedied by reasonable diligence on the part of the defendant, and whether at the time of the accident they were in the exercise of due care.
In speaking of this obligation imposed upon towns, Mr. Justice Ames, in Marshall v. Ipswich, 110 Mass. 522, 526, said, "The purpose of such railings is to make the way itself safe and proper for use. They are required in the case of bridges, embankments or causeways, and generally where excavations, deep water, etc., are so near to the line of public travel as to expose travellers to unusual hazards."
It is sufficient to say that upon this question, which was an issue of fact, the jury could find that the highway, originally laid out in 1784 and relocated in 1826, had become defective because of the absence of a sufficient railing, which if erected and maintained would have rendered this part of the road safe and convenient for the use of travellers and prevented the accident. Lyman v. Amherst, 107 Mass. 339. Harris v. Newbury, 128 Mass. 321. Tisdale v. Bridgewater, 167 Mass. 248. Harris v. Great Barrington, 169 Mass. 271.
This defective condition was well known to the husband who acted as driver, but neither such knowledge, nor the opportunity for immediate observation which was afforded as the carriage approached the bridge, are conclusive upon the question of contributory negligence. They are to be treated rather as circumstances to be considered by the jury with the other testimony bearing upon this issue. We refer only to a few of the more recent decisions. Powers v. Boston, 154 Mass. 60, 63. McGuinness v. Worcester, 160 Mass. 272, 273, and cases cited. St. Germain v. Fall River, 177 Mass. 550. Torphy v. Fall River, 188 Mass. 310. Campbell v. Boston, 189 Mass. 7, 10. Hennessey v. Taylor, 189 Mass. 583, 586. See also Urquhart v. Smith Anthony Co. 192 Mass. 257.
The further important fact that the horse was blind also comes within this division, for how far loss of sight may have rendered him unmanageable, or contributed to the accident, depended largely upon the weight to be given to the evidence, when viewed in the light of common experience, that notwithstanding this infirmity he could be used and driven with safety. Brackenridge v. Fitchburg, 145 Mass. 160. Smith v. Wildes, 143 Mass. 556.
If the inference either of care or of negligence which might have been drawn from this portion of the evidence was solely for the jury, nothing further remains upon which the defendant's argument can rest, except the conduct of the driver in the management of the horse. The degree of care and skill with which a horse is being driven, or which may be required under certain conditions, generally is a question peculiarly within the province of the jury to decide. Stevens v. Boxford, 10 Allen, 25, 26. Blood v. Tyngsborough, 103 Mass. 509. Hill v. Seekonk, 119 Mass. 85. Bly v. Haverhill, 110 Mass. 520.
To drive in the daytime, with the reins in one hand, at a slow trot, a blind horse which could have been found to have been gentle and unaccustomed to stumble, even if the way led over a narrow bridge without suitable railings, required only that degree of care which the ordinarily careful man would exercise if placed in an analogous situation. Undoubtedly, as the event proved, it would have been more prudent to have guided the horse by holding the reins in both hands, and to have given exclusive attention to keeping him in the centre of the bridge, instead of driving with one hand and using the other to adjust the carriage robe, with the consequent interruption of the driver's attention to the exact course of travel; yet such conduct cannot be said as matter of law to be so extraordinary as not to be fairly incidental to the ordinary use of our public ways by travellers. Wright v. Templeton, 132 Mass. 49. Kelly v. Blackstone, 147 Mass. 448, 451. Britton v. Cummington, 107 Mass. 347.
It accordingly follows that the rulings requested were rightly refused, and the cases were properly submitted to the jury.
Exceptions overruled.