Stoliker v. City of Boston

90 N.E. 927, 204 Mass. 522, 1910 Mass. LEXIS 944

• Court: Massachusetts Supreme Judicial Court
• Decided: February 11, 1910
• Status: Published

Opinion

Sheldon, J.

1. The first question in these cases is whether the jury would have been warranted upon the evidence in finding that the plaintiff was in the exercise of due care. Looking only at his conduct while driving on the street railway track, between the post of the elevated railway where the piles of timber had been put and that part of the way where the paving had been taken up and passage was obstructed, we are of opinion that such a finding could have been made. He was driving along in the ordinary way, going at only a slow trot, upon a part of the street which had not been disturbed, which it was agreed had been left open for the passage of street cars, and which upon the evidence the jury might say was openly and commonly used by other teamsters in the very way that he was using it. Lyman v. Hampshire, 140 Mass. 311. Maguire v. Fitchburg Railroad, 146 Mass. 379. Thyng v. Fitchburg Railroad, 156 Mass. 13. Hyde v. Boston, 186 Mass. 115. Jones v. Boston, 197 Mass. 66. He had no reason to apprehend that the timbers piled under the elevated railway had been so laid that their ends would protrude into the street and make it dangerous for him to pass in a place apparently left open for him and others to use. The jury might say that he was not negligent in failing to see the slight protrusion of the end of one timber as he approached it, although of course this question would be for them to determine. Moret v. George A. Fuller Co. 195 Mass. 118.

But the plaintiff entered upon this part of Atlantic Avenue from the east, at India Wharf; and it was perfectly manifest to him at that time that the east side of the avenue was undergoing repairs, that the pavement on that side and the sidewalk had been partly torn up and that passage was otherwise obstructed ; and the jury have found, in answer to a question put to them by the judge, that there was at this time a barrier near the head of India Wharf, on the north side of the entrance to the avenue, extending from the sidewalk towards the east track of the street railway, “ wifh a sign that the street was closed for repairs, no passing through, or words to that effect.” The evidence makes it certain that the plaintiff must have passed this barrier. Could it have been found that this was consistent with the exercise of due care on his part ?

It has not been found, and it was not contended at the trial, that this barrier extended all the way from the sidewalk to the railway tracks. It seems to have guarded only the space of the roadway which actually had been made impassable for public travel. There was evidence that besides the space occupied by the railway tracks a considerable width of the street surface had been left untouched and in condition for travel. This space according to most of the evidence was a foot and a half or two feet wide; it was adjacent to the car tracks and increased so far the width east of the elevated structure that was left open and available. The defendant Kiley, however, testified that the roadway from the old curb to the track was clear and that the pavement was undisturbed in that entire section until some time after the accident. The plaintiff is entitled on these excep- • tians to have the most favorable view possible of the evidence taken: and if this testimony of Kiley’s were believed, it might be doubted whether there was any ground for imputing negligence to the plaintiff in entering upon this part of the avenue. But we prefer to consider the question upon the other evidence.

It recently has been held by this court that a traveller on a city street in many cases may be justified in thinking that a notice placed upon a barrier in the street that the street is closed to public travel is no broader in its scope than the barrier itself, and that only that part of the street which is actually shut off by the barrier is intended to be closed to public travel. Hurley v. Boston, 202 Mass. 68. This applies to cases in which the whole of the road is worked for public travel, but only a part of its width is shut off; and it must apply more forcibly in a busy and crowded street and in cases where upon the apparent indications a part of the width of the street is not only not shut off, but according to the indications on the surface of the ground has purposely been left open for travel. But the jury could find that this was the case here. There was testimony that Atlantic Avenue was a crowded street, carrying the heaviest traffic of any freight street in Boston; and although one witness testified that Saturday afternoon is a little quiet, and that it was exceptionally quiet on the Saturday afternoon on which this accident happened, the testimony of another witness was that “ Atlantic Avenue was quite a good deal crowded by travel on week days, especially in the afternoon, Saturday as well.” And the jury could well find, on all the testimony, that there was much travel on this side of that avenue at the time of the accident. We already have seen that it could be found that the location of the barrier, the condition of the street, the regular current of travel, and the open and common use of this side of the avenue indicated that there was no intention to close this part of its width to public travel. Corbett, the inspector of the city of Boston at this place, a witness for the defendants, testified that cars passed here every seven or eight minutes, and that he saw a “ considerable number of teams passing on the track ”; and he added, “We were not supposed to keep teams out.”

Undoubtedly the plaintiff’s knowledge of what was going on ■here and of the conditions that existed on the easterly side of this avenue was to be considered against him, especially in view of the testimony that he might safely have driven on the westerly side of the elevated structure. The care which he was .bound to exercise must be proportioned to the visible dangers and to whatever notice or warning was given to him by barriers, signs or otherwise. But these considerations were for the jury. Weare v. Fitchburg, 110 Mass. 334. Greorge v. Haverhill, 110 Mass. 506. Kelly v. Blackstone, 147 Mass. 448. Norwood v. Somerville, 159 Mass. 105. Torphy v. Fall River, 188 Mass. 310. Campbell v. Boston, 189 Mass. 7. Cutting v. Shelburne, 193 Mass. 1. Winship v. Boston, 201 Mass. 273. The jury could find, from the appearance of the street and the barrier and the manner in which the unbarricaded part of the street continued to be used for public travel with the apparent -consent of the city and of the contractors, that the plaintiff had a right to suppose that the part of the street which he was using was intended so to be used. Leonard v. Boston, 183 Mass. 68. Learoyd v. Godfrey, 138 Mass. 315, 323. Nor could it be said as matter of law that it was negligence for him not to go over to the other side of a crowded street like this,, where he might apprehend that it would be difficult for him to go in the direction that he wished to take. This is the converse of Davis v. Whiting & Son Co. 201 Mass. 91, 95.

This plaintiff did not, as was the case in Compton v. Revere, 179 Mass. 413, enter upon a street which he knew was not graded or fit for travel. The jury could find that instead of disregarding a notice that a part of the street was unfit for public travel, as in McFarlane v. Boston Elevated Railway, 194 Mass. 183, he adapted his conduct to the requirements of the notice by confining himself and his wagon to that part of the street to which the notice was not intended to apply. There was no evidence of such reckless conduct on his part as was testified to in Wood v. Westport, 185 Mass. 567.

We are of opinion that the question of his due care should have been submitted to the jury.

2. There was evidence of negligence of the Cahill Construction Company, not only in the erection of this pile of lumber without proper guards or barriers, but in allowing at least one piece of timber to be put upon the pile which it placed between the posts of the elevated railway so as to protrude over that part of the way which was left open and designed for public travel. This was manifestly dangerous and likely to produce just such an accident as in fact happened. Brooks v. Kinsley Iron & Machine Co. 202 Mass. 228, 232. Cooper testified that he saw this state of affairs on the morning of the day of the accident; the jury could find that it so continued until after four o’clock in the afternoon, when the accident happened, and that it was the cause of the plaintiff’s injury.

3. It appeared that the defendant Kiley had made a contract with the city of Boston which included the work that was being done on Atlantic Avenue at the time. He was called as a witness by the plaintiff and testified that he had made a subcontract with the Cahill Construction Company, under which that company did all of the timber work, including the furnishing of all labor, lumber, piling and other material, while Kiley himself attended to the concreting, paving and laying of brick sidewalks wherever necessary; that all the work that was going on at the time and place of the accident was being done by the Cahill Company’s men; and that Kiley and his men were doing no work here and had nothing to do with the Cahill Company’s work but were simply waiting until that company should have finished what it had contracted to do. He also testified that he had no control over the Cahill Company’s men and no right to direct them or interfere with them at all, and that he did not do so. It was undisputed that the timber against which the plaintiff’s wagon struck had been piled there by the Cahill Company. There was other evidence however that Kiley had been about the scene of the accident not only on this day, but on every other day, apparently superintending all the men who were working there, and talking with his own foreman and with Cahill, who was acting for the Cahill Company. It also could have been found on Kiley’s testimony that he had taken charge of putting up and maintaining barriers with proper signs to close this part of the avenue to travel; and he testified that he had placed such barriers, one extending from the curb to the surface track, and the other between the surface track and the Union Freight Railroad under the elevated structure. But the jury found that there was no such barrier in position as the one last mentioned.

If we assume upon this evidence that Kiley could not have been held liable for the negligence of the Cahill Company as an independent contractor, we are yet of opinion that the plaintiff had a right to go to the jury in the suit against Kiley. It may be doubted whether there was not some evidence that this defendant was exercising control over all the work. Learoyd v. Godfrey, 138 Mass. 315, 323. However that may be, it could be found that Kiley had assumed the duty of maintaining proper barriers to give notice that this part of the street was closed to travel; that he failed to do this, as to a part of the width that ought to have been shut off; that under the circumstances he ought not so to have failed; and that but for this failure the plaintiff would not have entered here. The ease is not like Jones v. Collins, 177 Mass. 444. That decision turned upon the fact that the contractors had given reasonable notice by appropriate barriers and signs that the whole street was closed to travel, which was sufficient to exonerate them. McFarlane v. Boston Elevated Railway, 194 Mass. 183. The jury could find that that was not so in this case. It was for them to say whether the defendant had used proper care to protect the travelling public. Jones v. Collins, 188 Mass. 53.

Accordingly the case against Kiley ought to have been submitted to the jury.

4. The city of Boston stands, to be sure, in a somewhat different position from that of the defendants in the other cases. But there had been no formal or technical closing of any part of this avenue, and the case is within the second class mentioned by Boring, J., in Jones v. Collins, 188 Mass. 53. There is no question that this pile of timber, put up in the manner that it was, could be found to be a defect in the way. Grriffin v. Boston, 182 Mass. 409, and cases cited. Bennett v. Everett, 191 Mass. 364, 368. Davis v. Charlton, 140 Mass. 422. Haberlil v. Boston, 190 Mass. 358. This obstruction had been put in the street with the consent and under the authority of the city, by virtue of a contract made by it with Kiley; the obstruction had remained there a considerable time, although occasionally somewhat changed by the removal of some timbers and the addition of others; the locality and' the progress of the work had been under the constant observation of an inspector of the city. The city might be found to have had reasonable notice of the existence of the defect. Pratt v. Cohasset, 177 Mass. 488. Accordingly the question arose whether reasonable care and diligence had been used to protect the public by barriers or otherwise against this obstruction temporarily in the way. Jones v. Collins, 188 Mass. 53, 55, and cases cited. Winship v. Boston, 201 Mass. 273. Jones v. Boston, 197 Mass. 66. McMahon v. Boston, 190 Mass. 388. Torphy v. Fall River, 188 Mass. 310. Butman v. Newton, 179 Mass. 1. And if the city chose to intrust that duty to Kiley or the Cahill Company, it became liable for their failure, as it would have been for its own. Blessington v. Boston, 153 Mass. 409. Brooks v. Somerville, 106 Mass. 271. Whether this duty had been complied with was under the circumstances a question for the jury. See the cases cited above.

In McFarlane v. Boston Elevated Railway, 194 Mass. 183, and Jones v. Collins, 177 Mass. 444, we already have seen that it appeared or was assumed that the street or the part of' it in question had been either technically closed or fully guarded by sufficient barriers and signs. In Compton v. Revere, 179 Mass. 413, the street was ungraded and wholly unfit for travel. Of course the defendant’s contention that the condition of this part of Atlantic Avenue indicated that it was not open to the public must be considered by the jury; but under the other circumstances which have been mentioned it could not be ruled as matter of law that this contention was made out.

5. A.s to this part of each one of the cases, the question will be whether reasonable care was taken, by barriers, warning or otherwise, to protect the public from the existing dangers. It was not necessary, and might be a great public inconvenience, to close the street absolutely to public travel. In this respect both the city and each one of the other defendants had done its full duty, although it had not physically excluded all travellers even from that part of the street upon which work was going on, if, either by erecting and maintaining sufficient barriers or by posting notices or by other suitable means, it gave warning to all travellers coming to this part of the street, that it was unsafe for travel; that though not formally closed, it had yet been practically withdrawn from the space designed and appropriated' for travel. Winship v. Boston, 201 Mass. 273, 275; McFarlane v. Boston Elevated Railway, 194 Mass. 183. The questions for the jury will therefore be whether the plaintiff had reasonable notice and warning that repairs were going on in that part of the street on which he was travelling, such as naturally would detract from the safety of using it as a street and would call for the exercise of special care on his part. If this was the case, and if he suffered from the existence of no other danger than that of which full notice and warning had been given to him, it could not be said that either one of the defendants had been guilty of negligence in this respect.

6. But no action could be maintained against the city of Boston unless it had had notice of the time, place and cause of the injury. This notice must be given “ in writing, signed by the person injured or by some person in his behalf,” within thirty days after the happening of the injury; but “ if by reason of physical or mental incapacity it is impossible for the person injured to give the notice within the time required, he may give it within ten days after such incapacity has been removed.” B. L. c. 51, §§ 21, 22. In this case the accident happened October 8,1904. There was evidence that the plaintiff immediately became unconscious, and ever since has been of unsound mind and has not now and never has had any recollection of the accident. His father was appointed his guardian on December 21,1904, and on December 29, 1904, gave to the defendant due notice in writing signed by himself as guardian.

There was evidence that the plaintiff has always since the accident been unable to give notice personally by reason of mental incapacity. This evidence was stronger than what was held to present a question for the jury in Barclay v. Boston, 167 Mass. 596, and comes up to the standard that appeared in the same case in 173 Mass. 310. It might have been found to show the complete incapacity which was lacking in Nash v. South Hadley, 145 Mass. 105, May v. Boston, 150 Mass. 517, Saunders v. Boston, 167 Mass. 595, and Ledwidge v. Hathaway, 170 Mass. 348., The intimation in Cogan v. Burnham, 175 Mass. 391, that both physical and mental incapacity must be shown was made in a case in which only physical incapacity appeared, and there was nothing to indicate that the person injured could not have procured the notice to have been given by some one in his behalf. Here there was such evidence.

But the counsel for the city contends that the father of the plaintiff might have given the notice in his behalf. It may be assumed that this is so; but there was no duty to give the notice incumbent on the father, as perhaps there would have been in the case of a minor child; and it does not follow, in a case coming within the statutory provision, that the plaintiff’s administrator, if he had died, or his guardian when appointed, could not give the requisite notice if they did so in due season • after their appointment. This is indicated by the reasoning of the court in Taylor v. Woburn, 130 Mass. 494, Nash v. South Hadley, 145 Mass. 105, and Lukkonen v. Fore River Ship Building Co. 197 Mass. 586. It is difficult to see how the rights of the plaintiff, if his condition entitled him to the privilege given by the statute, could be affected or impaired by the inaction of his father or of any relative or friend other than his duly appointed guardian.

It was the duty of the guardian when appointed to “ appear for and represent his ward in all actions, suits and proceedings.” R. L. c. 145, § 25. The giving of the notice was an essential step in prosecuting this action. Madden v. Springfield, 131 Mass. 441. Accordingly it was the right and the duty of the guardian to give the notice. He gave it seasonably after his appointment. It sufficiently showed on its face that it was signed by the guardian in behalf of the plaintiff. Carberry v. Sharon, 166 Mass. 32. Higgins v. North Andover, 168 Mass. 251. If the jury found that the plaintiff up to that time was incapable of giving the notice, or of procuring it to be given by another, we are of opinion that the notice given by the guardian was sufficient under the provisions of R. L. c. 51, § 21, already referred to.

In each one of the three cases the order must be

JExceptions sustained.