Gallagher v. Inhabitants of Watertown

83 N.E. 1104, 197 Mass. 467, 1908 Mass. LEXIS 745

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1908
• Status: Published

Opinion

Braley, J.

In walking over one of the public ways within the town, the plaintiff received injuries by stepping into a hole of which she had no previous knowledge. Upon the question of her due care, the ease presents no peculiar features to distinguish it from the recent cases of Torphy v. Fall River, 188 Mass. 310; Campbell v. Boston, 189 Mass. 7, and Bennett v. Everett, 191 Mass. 364, where it was held that this issue was properly submitted to the jury.

The principal contention of the defendant,. however, is, that there was no evidence either of a defect or of its negligence. But if the descriptions of the extent of the depression which had existed for over a year were variant in some particulars, there was a general agreement of the witnesses, that in the removal of the lamp post set in the sidewalk near the curb, the concrete had been cut away, and after removal the hole had been filled with earth, which subsequently settled leaving an uneven surface. In describing the edges of the concrete, one of the plaintiff’s witnesses said, that they were “ to a certain extent rough and rounded,” while the defendant’s superintendent of streets referred to them, as “ not particularly ragged,” as there were no projecting stones. But the duty of municipal corporations in regard to the proper maintenance or repair of public ways, and under what circumstances either a defect can be found to have existed, or they should be charged with negligence in not making suitable repairs, has been so fully considered in Moynihan v. Holyoke, 193 Mass. 26, and in Mason v. Winthrop, 196 Mass. 18, that no useful purpose would be served by further discussion.

Under the authority of these decisions this question also was one of fact, and the request of the defendant that a verdict be ordered in its favor was rightly refused.

Exceptions overruled.