Nahum S. Lund & wife vs. The Inhabitants of Tyngsboro, 11 Cush. 563

Dewey, J.

It is contended on the part of the defendants that the rules of law applicable to carriers of passengers in stage-coaches or other vehicles, where, by reason of exposure to great bodily harm, through some default of the carrier, the passenger voluntarily throws himself from the carriage to avoid a greater peril, and thereby receives a bodily injury, do not apply to towns, in reference to travellers upon a defective highway, and who, by reason of a like exposure, by their imminence of contact with such defect, have thrown themselves from their carriage or other vehicle, and thus received a serious personal injury.

The plaintiffs not having come in actual contact with the defect in the highway, it. is said that the liability has not attached to the town. But this, we think, is too limited a construction of the statute The injury to be compensated for by the town is one that has been occasioned “ by reason of any defect or want of repair in any highway,” &c.

Such injury to the person may be occasioned by reason of the defect of the highway, when the traveller being brought suddenly into imminent peril by his near approach to it, in the exercise of ordinary care and prudence, voluntarily leaps from his carriage, and suffers an injury thereby. The circumstances must be such as to justify his conduct, and the defect in the highway must have been the cause of his voluntary act ot throwing himself from the carnage.

It is further insisted, however, that the instructions given to the jury on their coming into court, and asking further instructions, after the case had been committed to them, although correct as abstract propositions, or in reference to other cases that might have called for such a ruling, yet, were unauthorized in this particular case, and upon the cause of action as set forth in the declaration.

The" declaration, after setting forth the defect in the highway, alleges as the ground for recovering damages, “that by reason of said defect in said highway, the said Mary was violently thrown from said wagon upon the ground,” whereby, &c. she was injured in her limb. The plaintiffs’ case, as set forth in the declaration, obviously points to the case of being involuntarily thrown from the wagon, by reason of the same coming in contact with the alleged defect and obstruction in the highway.

It was this case which was on trial before the jury, and evidence of an accident occasioned by a voluntary leaping from the wagon to avoid a peril to which the female plaintiff was exposed by remaining in the same, that of the wagon being upset by actual contact with the hole in the highway, would have been liable to the objection of a variance between the declaration and the proof. The instructions given, therefore, although entirely proper under a declaration adapted to the state of facts supposed, were not applicable to the case as presented on the pleadings.

They were such as authorized the jury to find that the plain-till's had maintained the action by proof of a voluntary leaping from the wagon under justifiable circumstances, to avoid danger from the defect in the highway, although the wagon did not go into the hole, and the party was not thrown out. The further inquiry then arises, whether the defendants can, at this stage of the case, avail themselves of this variance between the declaration and the evidence relied upon to sustain the verdict.

Dealing with this case, as the ordinary one of a case tried before a jury upon questions of fact contested by the parties, and where the case opened by the plaintiff, and the case as argued and submitted to the jury, directly presented the question upon which their verdict was found, we should hold the defendants estopped from taking the objection, after verdict, to a variance between the declaration and the proof.

Not having taken this objection at the proper stage of the case, they should not be allowed to raise it afterwards, for the first time, on a bill of exceptions, or report of the case by the presiding justice. If taken at the trial, the plaintiff might ask leave to amend, and thus at an early period obviate the objection, before the case was submitted to the jury, while the other party would also be fully protected in all his legal rights, compelling the party to amend, or discontinue his action. This case does not thus present itself, as we understand from the report and the argument at the bar.

The instructions complained of, that the defendants were liable in this action, although the wheel of the wagon did not go into the hole, and Mrs.

Lund was not thrown out of the wagon, but voluntarily jumped out of it, under such circumstances of exposure to danger as would justify her in so doing, in the exercise of ordinary care and prudence, were not given in the ordinary charge of the judge in summing up the case to the jury, but after the jury had been out some time, and had come into court, and asked certain further instruction's or directions in matters of law, upon a question propounded by them to the court.

Communications from the court at this stage of the trial are usually deemed a matter in which the counsel are not to interfere, and their silence, if present, which might or might not be the case, should not estop them from raising any question upon the correctness in matters of law of any new instructions thus given, as to the right of. the plaintiff to maintain his action. The instructions being given under these circumstances, the court are of opinion that it is open to the defendants to question their correctness as applied to the case stated in the plaintiffs’ declaration.

As already stated, the case upon which the instructions were given, in answer to the inquiry of the jury, was not the case stated in the plaintiffs’ declaration. The verdict must be set aside and a New trial had.