INJUEIES FROM FRIGHT AND DEFECT IN HIGHWAY. 193 



caused by such defect. As two distinct and irreconcilable 

 rules have been laid down on this subject, it will be convenient 

 to group together the decisions under each head according to 

 States. 



In Massachusetts it was said in an early case that "when 

 the loss is the combined result of an accident and of the defect 

 in the road and the damage would not have been sustained 

 but for the defect, although the primary cause be a pure ac- 

 cident, yet, if there be no fault or negligence on the part of 

 the plaintiff, if the accident be one which common prudence 

 and sagacity could not have foreseen and provided against, 

 the town is liable. This doctrine in no respect conflicts with 

 the well-settled rule requiring the plaintiff to use ordinary 

 care and diligence, and that without showing this he cannot 

 recover, though the road be defective and the damage be 

 occasioned by the combined effect of a defective road and 

 want of care and skill in avoiding the injury." ^ And in a 

 later case it is said that the plaintifif must not only be driving 

 with due care and skill but that he "must be using a proper 

 horse and vehicle, with strong and suitable harness, and that, 

 if there be any defect in any of these particulars, and such 

 defect contributes to the disaster, the town is not liable, al- 

 though the way be defective. The reason is, because it is 

 impossible to know what proportion of the damage is oc- 

 casioned by one and what by the other, or whether there 

 would have been any damage at all but for the traveller's own 

 default." 3 



These cases seem to hold that the plaintifif may recover, 

 except where he is in some way negligent.* But in Davis v. 



^ Palmer v. Andover, 2 Cush. (Mass.) 600, 608. 



' Murdock v. Warwick, 4 Gray (Mass.) 178. 



* See Rowell v. Lowell, 7 Gray (Mass.) 102, where it is said: "We think 

 the only exception to the rule that the plaintiff cannot recover unless the 

 defect in the highway was the sole cause of the injury, must be one like 

 that in Palmer v. Andover, where the contributing cause was a pure 

 accident and one which common prudence and sagacity could not have 

 foreseen and provided against." 

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