Opinion
September 15, 1909.
Holmes Waterman [ George M. Palmer of counsel], for the appellant.
Melvin E. Baldwin, for the respondent.
The plaintiff, Pearl Green and one Bennett, between eight and nine o'clock on a September evening, were driving in a top buggy along a country road which connects the Decatur road running into Worcester and the road running into Westford and is about three and a half miles in length. The road follows the windings of a creek and is called the Gulf road as it goes along the gulf or valleys through the hilly country. The road has been traveled about forty years and at the place in question has been during that time in substantially the same condition. No accident ever occurred there before. There are twelve farm houses upon the road. The town has about one hundred miles of highways. The traveled part of the road was about twelve feet wide. Next to the traveled part of the road the westerly bank rises abruptly about two feet, the highland extending back to a stone wall. On the easterly side of the road is another bank, or shoulder to the road, as the witnesses call it, rising from twenty to twenty-two inches from the beaten path. Just northerly of the driveway, extending from the road to Conrow's house, this shoulder along the easterly part of the road, for a space of about nine feet, is only six inches in height, but rises abruptly on either side. Opposite the nine feet is a precipitous descent of about nineteen feet. The road opposite the nine feet, and for some distance on either side of it, is substantially straight. A driveway leads from the road westerly, and diagonally to the Conrow house, leaving the road a short distance south of the nine-foot space. Bennett, the driver, was sitting in the middle of the buggy seat. A part of the way the buggy top was up, but as it was dark it was put down, and the track and horse could be seen by the occupants of a wagon. The horse, coming from the south, and before it arrived opposite the nine-foot space mentioned, left the beaten path, and went upon the embankment upon the westerly side, presumably mistaking the true path of the Conrow driveway. The driver backed the horse nearly straight across the road, and the wagon and occupants went down the precipice, and the plaintiff was injured.
A town does not assume to make its highways absolutely safe, and to guarantee against accident, but is to make them reasonably safe for public use in the ordinary way. A team driving in either way along the road could not get off the precipice except by driving upon the shoulder at a considerable elevation before it arrived at the nine-foot space. Teams would not ordinarily be turning at sharp angles or backing across the road at this place because of the embankment upon both sides. A team could not go down the embankment except in just the way this team did by backing right across the highway into it, and it could not be foreseen that any one would drive so carelessly at this place that it would become necessary or possible to back across the highway. I do not think, therefore, that the town was negligent in failing to maintain a barrier at this place. The occurrence was so improbable and unnatural that it, or an occurrence of any similar nature, would not ordinarily be anticipated.
The plaintiff's evidence shows that Bennett was driving. Plaintiff's witness Pearl Green testified to that fact. Upon cross-examination she swore she did not state at the Conrow house, immediately after the accident, that the plaintiff was driving up to near the scene of the accident. The defendant then called the witness Waterman and offered to show that the witness Green did make such statement. The evidence related to a matter material to the issue, for if the plaintiff was driving and succeeded in placing the horse in the position where it was backed down the precipice, it would make her contributory negligence a live question in the case. It was competent to discredit the witness by proving her contradictory statement with reference to this material fact. The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.
All concurred, except SMITH, P.J., and COCHRANE, J., who dissented.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.