Harrigan v. City of Worcester

84 N.E. 467, 198 Mass. 354, 1908 Mass. LEXIS 947

Opinion

Sheldon, J.

In our opinion there was sufficient evidence to warrant the jury in finding that the defendant had, or by the exercise of proper care and diligence might have had, reasonable notice of the defective condition of the sidewalk.

The alleged defect was a hole in the sidewalk caused by the absence of the cover of a box which had for many years been in the sidewalk. One witness testified that he had walked over this box several times, and it had rocked under his feet; that it was always loose. Another witness testified that on the Sunday preceding the day of the accident

Footnotes

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* he saw the cover off this box, and himself put it on again; and that he had seen it off twice before, within a month or two of the accident. This evidence was doubtless meagre, and its effect was somewhat weakened by the testimony of other witnesses and of the plaintiff himself that they never had seen the cover off and did not know that there was anything wrong with it. Still it presented a question for the jury, within the rule of Post v. Boston, 141 Mass. 189. They might say that this cover was so loose as to be liable to come off the box and leave a dangerous hole in the sidewalk, and that a proper supervision would have disclosed this fact to the defendant’s officers who were charged with the care of the street. Campbell v. Boston, 189 Mass. 7. McGraffigan v. Boston, 149 Mass. 289. Bourget v. Cambridge, 159 Mass. 388. It cannot be said, as in Hanscom v. Boston, 141 Mass. 242, that the accident was due to the neglect of a third person to see that the cover was properly fastened in its place.

As the exception to the admission of the testimony of Kramer was not argued and may be treated as waived, no other question than that already considered has been presented to us.

Exceptions overruled.

The accident happened on Saturday, September 2, 1905.