Burke v. City of Lynn

Massachusetts Supreme Judicial Court

Burke v. City of Lynn

106 N.E. 995, 219 Mass. 302, 1914 Mass. LEXIS 1533

CourtMassachusetts Supreme Judicial Court

DecidedNovember 24, 1914

StatusPublished

Cited by6 cases

This text of 106 N.E. 995 (Burke v. City of Lynn) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burke v. City of Lynn, 106 N.E. 995, 219 Mass. 302, 1914 Mass. LEXIS 1533 (Mass. 1914).

Pincite

Opinion

Sheldon, J.

It is impossible to say that the evidence would not have warranted a finding that the plaintiff’s intestate was in the exercise of due care at the time of the accident. He was walking along the sidewalk in the usual way. It was a dark and rainy night. It does not appear that he knew of the existence of the alleged defect, and there was nothing but the darkness to call for any particular vigilance on his part. The effect of this circumstance was for the jury. That he must have been near the curbstone, or that his foot may have been over it when his toe hit the edge of the protruding stone, could not have been decisive against him. There was positive evidence that he was not under the influence of liquor. He had a right to rely somewhat upon an expectation that the sidewalk would be free from any dangerous defects. The case comes under the principles laid down in Woods v. Boston, 121 Mass. 337; Flynn v. Watertown, 173 Mass. 108; Franklin v. Worcester, 204 Mass. 22; Connelly v. Boston, 206 Mass. 4; O’Neil v. Chelsea, 208 Mass. 307.

The defendant has not contended that there was not evidence of an actionable defect, of which the defendant might have had sufficient notice by the exercise of reasonable care and diligence. See Sawyer v. Newburyport, 157 Mass. 430; Lamb v. Worcester, 177 Mass. 82; Franklin v. Worcester, 204 Mass. 22.

The notice to the defendant erroneously stated that the injury occurred on the westerly sidewalk of the street. It in fact occurred on the easterly sidewalk. But the rest of the notice was accurate and sufficient. The place was identified by the reference [304]*304to the property of Sullivan. The defect was, as it could be found, plainly visible on the sidewalk, and there was no such defect on the westerly sidewalk. No counter notice was given by -the defendant under the provisions of R. L. c. 51, § 22. The jury could have found on all the circumstances that there had been no intention to mislead in giving the notice, and that the defendant was not in fact misled. Liffin v. Beverly, 145 Mass. 549. Veno v. Waltham, 158 Mass. 279. Fuller v. Hyde Park, 162 Mass. 51. Coffin v. Palmer, 162 Mass. 192. There is nothing to the contrary of this in Tobin v. Brimfield, 182 Mass. 117, relied on by the defendant. The testimony of the defendant’s claim agent was not conclusive in its favor.

The case should have been submitted to the jury; and the entry must be

Exceptions sustained.

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Sheldon, J.

It is impossible to say that the evidence would not have warranted a finding that the plaintiff’s intestate was in the exercise of due care at the time of the accident. He was walking along the sidewalk in the usual way. It was a dark and rainy night. It does not appear that he knew of the existence of the alleged defect, and there was nothing but the darkness to call for any particular vigilance on his part. The effect of this circumstance was for the jury. That he must have been near the curbstone, or that his foot may have been over it when his toe hit the edge of the protruding stone, could not have been decisive against him. There was positive evidence that he was not under the influence of liquor. He had a right to rely somewhat upon an expectation that the sidewalk would be free from any dangerous defects. The case comes under the principles laid down in Woods v. Boston, 121 Mass. 337; Flynn v. Watertown, 173 Mass. 108; Franklin v. Worcester, 204 Mass. 22; Connelly v. Boston, 206 Mass. 4; O’Neil v. Chelsea, 208 Mass. 307.

The defendant has not contended that there was not evidence of an actionable defect, of which the defendant might have had sufficient notice by the exercise of reasonable care and diligence. See Sawyer v. Newburyport, 157 Mass. 430; Lamb v. Worcester, 177 Mass. 82; Franklin v. Worcester, 204 Mass. 22.

The notice to the defendant erroneously stated that the injury occurred on the westerly sidewalk of the street. It in fact occurred on the easterly sidewalk. But the rest of the notice was accurate and sufficient. The place was identified by the reference [304]*304to the property of Sullivan. The defect was, as it could be found, plainly visible on the sidewalk, and there was no such defect on the westerly sidewalk. No counter notice was given by -the defendant under the provisions of R. L. c. 51, § 22. The jury could have found on all the circumstances that there had been no intention to mislead in giving the notice, and that the defendant was not in fact misled. Liffin v. Beverly, 145 Mass. 549. Veno v. Waltham, 158 Mass. 279. Fuller v. Hyde Park, 162 Mass. 51. Coffin v. Palmer, 162 Mass. 192. There is nothing to the contrary of this in Tobin v. Brimfield, 182 Mass. 117, relied on by the defendant. The testimony of the defendant’s claim agent was not conclusive in its favor.

The case should have been submitted to the jury; and the entry must be

Exceptions sustained.

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Bluebook (online)

106 N.E. 995, 219 Mass. 302, 1914 Mass. LEXIS 1533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-city-of-lynn-mass-1914.

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