Stewart v. Hugh Nawn Contracting Co.

223 Mass. 525

• Court: Massachusetts Supreme Judicial Court
• Decided: April 8, 1916
• Status: Published

Opinion

Crosby, J.

The plaintiff, while crossing Boylston Street in the city of Boston from the store numbered 332 on that street to the farther side of the street where she intended to post a letter at a mail box located near the corner of Arlington Street, was injured by reason of an alleged defect in the street.

The plaintiff testified that when she was crossing over the outbound street railway track, she stepped upon a plank lying next to the most northerly rail and that the plank “gave way under my foot, and I caught — I twisted my anide and caught my heel on the edge of the plank as it turned up and lost my balance.”

At the time of the accident and for some time previous thereto the defendant company was engaged in the construction of a subway under Bóylston Street, and in the course of its work had removed the surface paving and had replaced it with a plank covered structure. This work was being performed by the defendant company under a contract with the transit commission acting under the authority of St. 1911, c. 741. The surface planking was composed of planks sixteen feet long, eight inches wide and four inches thick laid on cross beams and spiked at each end.. There was evidence that the plank upon which the plaintiff stepped was raised above the level of the other planking; that it was loose and, when stepped upon, moved in different directions. There also was evidence from which it could have been found that this part of Boylston Street was open for public travel and had been open for such travel for several days. There was further evidence that the plank in question was loose during the last part of September before the accident, which occurred on October 9,1913, and it could have been inferred that it remained in the same condition from the last part of September up to the time the plaintiff was hurt. In view of this evidence, we are of the opinion a finding was warranted, that the defendant city either knew of the defect in the way, if it was defective, or by the exercise of proper care and diligence might have had reasonable notice of its existence. R. L. c. 51, § 18.

The city was not released from liability because the work was being done by a contractor employed by the transit commission. Connelly v. Boston, 206 Mass. 4. Torphy v. Fall River, 188 Mass. 310.

We are also of opinion that the question whether the defendant company was negligent was for the jury. An independent contractor is liable for negligence in the conduct of a public work by private contract, Murray v. Boston, 219 Mass. 501, although, if the transit commission had performed the work itself, the city of Boston would not be liable to the plaintiff, as the transit commissioners are public officers. Mahoney v. Boston, 171 Mass. 427. The jury were warranted in finding that the plank was in an unsafe condition due to the negligence of the defendant company. Rockwell v. McGovern, 202 Mass. 6.

We cannot agree with the contention of counsel for the defendants that under St. 1911, c. 741, § 18, the word “traffic” did not authorize the use of the street by persons except those engaged in commerce. While "traffic” is defined generally as the exchange of goods and commodities and the business of transportation, in this connection it cannot be construed so narrowly as to exclude all other uses of the street. We think that the Legislature intended “traffic” to apply to street traffic in the ordinary sense in which that term is used, and that it includes travel upon the street for any proper purpose by pedestrians and vehicles.

The jury would have been warranted in finding that the plaintiff was in the exercise of due care.

The testimony of the plaintiff and of the witness Clarkson as to their observation of the plank three weeks after the accident was admissible to show its condition at the time of the accident, and was admitted solely for that purpose.

Without considering in detail all the defendant’s requests, we are of opinion that they were covered by the instructions to the jury so far as they properly could have been given.

The entry in each case must be

Exceptions overruled.