Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1863-05-07

Frmb BpHey rs the city Of Worcester.
This was an action Of tort commenced and
tried in the supreme court ~ Lowell, in the coun
ty Of Mildlcs,x, iu Ige Aletcall presiding The
plaintiff alleged IA hi, writ that GU the evening
of the 18th of ApIl, 1862 he WIS driving his
horse AMI carriage from Worcester towards
Westborough, and that in consequence of the
defective highway Al Long Pond, he lost his
horse, harness, t~o buff 40 robes, and II part of
his wagon, aud was severely hurt himself. For
the defence, it was denied that the road was
ont of repair, or that the city was negligent, aud
il was claimed 10y the defence that the plaintiff
was careless, and that the accident occurred by
reason Of The negligence Of the plaintiff and not
from any want of car; and prudence on the part
OF the Off 'ers Of tbs city. Plaintiff claimed
dam tges to the amount of $4,000.
It appeared from the evidence at the trial that
the horse and wagon driven by tue plaintiff be-
lpnged TO .Jonn A. Thaycr OF Westborough; that
the team was hired on Sunday, April 10, by the
plaintiff, for the purpose of carrying two passen-
gers from WestberOuSh to Worcester, on that
day; that said plaintiff brought the passengers
10 Worcester, took divers aad suudry drinks at
various places, hCNOluillS " us own dululSSlOn,
and started from Worcester on his return to West
borough, about in the evening of said April 10
Plaintiff admitted that he saw fence about half
way across the road, at the place where the
Bloum glale road crosses Shrewsbury street,
but had n difficulty in driving past the fence,
and saw no distractions IN the road after that,
until he came TO the premises occupied by John
Sherman, from thirty to forty rods westerly of
| the pond where plaintiff admitted he saw fence
| which he says extended about two-thirdS of the
way aero IS the road, but that there was a smooth
| and well tro path or way around the north end
of the fence, that he drove around the fence with
| no difficulty, and supposed that the fence was
| there TO notify him that there was mud hole or
something of that kind in the road that he ioun
| no mud hole and no distractions in the road I'M
| til he drove off the end Of the embankment or
| cauSeway, which hal been filled into the pond
about two hundred feet; that it was a bright
| noonShiny night that he saw the wafer on both
! sides of him as he was upon the embankment,
| hut saw no water ahead OF him, and that it was
| good travelling all the way from Sherman house
| ill he drove into the pond, There he lost his
! horse, harness, Two buffalo robes and part of his
wagon. In consequence OF getting into the pond
and taking cold, plaintiff claimed that his grner-
al health had been greatly injured. He also i'll
| tO luced several witnesses to prove there was a
great deal of travel around the end of these two
| fences, and across the pond, during most of the
time The causeway was being butt. Here the
| plaintiff rested his case, claiming there was no
| sufficient notice TO the travelling public that no
| travel was allowed over the pond, and that NE
WIS in The exercise of due at the time of the
| accident.
FIR III, defence it was proved that the plaintiff
during the afternoon of that day became quite
intoxicated; rhlt the fence acrOS the street where
| the BOomingdale road crosses it was substan
TALLY put up that Sunday evening some Two or
| three hOuIs before plaintiff passed along; that
the fence at Sherman's house was a substan-
tia and strongly made fence extending from the
| wall on the south side OF the road to within s or
~ feet OF the wall on the south side of the road
| place b.ing left there for he purpose of admit
| ting teams engaged III the work on the causeway
THAT there was an excavation III the road from
| ) to % feet deep from Shcrman's house down TO
| the pond, an that there were piles of stones on
| the road and on both sides all the way, and that
there were various carts, teams, &c in that i'm
mediate locality, which defendant claimed was
sufficient notice the plaintiff that he was pass
Ing over place not u,ei by The public AS high
way. Defendant c.aimcd lhaG the fences hich
the plaintiff passed. we're sufficient guard or no.
tce to any person in the exercise of ordinary
prudence; that the road was fenced against tray
el; that the commissioners of highways by Civ
ing public notice and in other ways had done all
the law required Tor the purpose of notifying the
| public thar the brid.c was up and repairs We're
! being made, and that the road was not open for
| travel. For the defence il was claimed that the
pIdinth was not III the exercise Of ordinary care
and prutcHce in entering upon This portion of the
z$h%ay %9 repairs %tfs Sr9E maq Is t ihhqE WY 9
after seeing the fences, did it at his own peril and
risk. Defendant also claimed that the accident
happened on Sundly, and that the plaintiff he-
| ing cnga Jed in secular business, the burden of
| proof was upon him TO show that he (plxintiif)
was at the time Of the accident travelling in ~
work OF necessity and charity, and defendant re-
quesed the court 10 instruct the Jury thar il they
| found thar the plaintiff uavelle from WestbOro
| 10 Worcester in work OF necessity or chart v,
! IN carry ing two Passengers home TO their fami-
lies, it was not work OF necessity or charity for
| him 10 return to WcstborO that Sunday eve
ming. The court instructed the jury, but di-
rected them, case they found II verdict for the
defence, 10 stare in the verdict whether or hot
they found the plaintiff at the time of the acct
dent in the exercise Of due care. The jury, after
being out about fifteen minutes, returned u YER
dict for the defence, stating that they SO found
without regard to the testimony relating to the
Sunday law.
The case was commenced Monday morning
and concluded Tuesday night. Hon. Charles r.
Train of Framingham, and l. II. Wakefield of
Hopkntou, for the plaintiff; and S ?. Twiss,
Ed, city solicitor, aud A. Dadmuu, Esq of
Worcester, Tor the defence Defendant made his
first claim for damages about year since, in a
petition to the city government, which rejected
his claim