Thomas v. Western Union Telegraph Co.

Hoar, J.

This case was taken from the jury upon the ground that there was no sufficient evidence to maintain the action; and has been argued for the defendants chiefly upon two points: 1. that there was no evidence of negligence on the part of the telegraph company; and 2. that the evidence had no tendency to show that the plaintiff was himself in the exercise of due care at the time of the accident.

We think it somewhat doubtful whether the first point is • open upon the bill of exceptions; and that the presiding judge may have only intended to rule upon the question of the care used by the plaintiff. But this is not important, because the fact that a telegraph wire is found swinging across a public way, at such a height as to obstruct and endanger ordinary travel, is in itself, unexplained and unaccounted for, some evidence of neglect on the part of the company whose duty it is to keep it in a proper and safe position, and should have been submitted to the jury. Worster v. Canal Bridge, 16 Pick. 541 .

The other point is more doubtful; but, upon careful examina *158 tian, we think that it would have been proper to submit that too to the jury, and that the plaintiff’s exception must be sustained. If a party, with full knowledge of the existence of an obstruction or defect in a highway, wilfully or recklessly keeps on, and involves himself in danger which he had no reasonable cause to believe that he could successfully encounter, he acts at his own risk, and must take the consequences. But because there is an obstacle to proceeding it does not follow that it is not consistent with reasonable care to attempt to proceed. Thus in Horton v. Ipswich, 12 Cush. 488 , it was held that, if a road was obstructed by snow, and the plaintiff knew that it was dangerous or impassable, but persisted in going on, he could not recover; but that, if he only knew it was obstructed, but not so as to indicate to him that he could not pass with safety, and he met with injury in proceeding with due care, he might maintain his action. And in Lund v. Tyngsboro, 11 Cush. 563 , it was held that, if a traveller, being brought into imminent peril by his near approach ío a defect in the highway, voluntarily, but in the exercise of due care and prudence, leaps from his carriage to avoid it, and is injured, he may recover compensation from the town, though he would have escaped injury if he had remained in the carriage. The question is not, in any case, whether the traveller knew of the defect, and might possibly have stopped or avoided it; but whether he had reasonable cause to think that he might escape from it by the means which he adopted, and used reasonable care in making the attempt.

Whether the plaintiff in the case at bar, finding a wire across the road which interfered with his going on, but finding also that with slight pressure it could be made to lie flat on the ground across the whole width of the travelled way, was justified in supposing that he could pass over it with safety, and whether he used due care in attempting to do so, were, in our judgment, questions of fact for the jury, to be decided by them upon the whole evidence. We cannot say that as matter of law the evi dence shows beyond all controversy that he was negligent.

jExceptions sustained.