Winship v. City of Boston

87 N.E. 600, 201 Mass. 273, 1909 Mass. LEXIS 726

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1909
• Status: Published

Opinion

Braley, J.

The original notice required by R. 'L. c. 51, § 22, did not fully state the place and cause of the plaintiff’s injury, but the supplemental statement in reply to the defendant’s request for further particulars, either cured the omission, or the jury could have found that in giving the notice there was no intention to mislead and that in fact the defendant was not thereby misled. Canterbury v. Boston, 141 Mass. 215. Norwood v. Somerville, 159 Mass. 105. Carberry v. Sharon, 166 Mass. 32.

The previous knowledge of the plaintiff of the condition of the sidewalk which was in process of repair, while evidence for the consideration of the jury on the question of her due care, cannot be said as matter of law to constitute negligence. Torphy v. Fall River, 188 Mass. 310. Campbell v. Boston, 189 Mass. 7. Hennessey v. Taylor, 189 Mass. 583, 586. Thompson v. Bolton, 197 Mass. 311, 313. Gallagher v. Watertown, 197 Mass. 467.

It is the defendant’s* further contention, that there was no evidence of its negligence, even if it was required to exercise reasonable diligence to maintain the street in a reasonably safe condition for the use of travellers. Hyde v. Boston, 186 Mass. 115, 118. Mason v. Winthrop, 196 Mass. 18. A part of the sidewalk was being repaired, but the entire street had not been closed to public travel. While the public ways cannot properly be maintained without frequent repairs, which cannot be classed as defects, yet ordinarily when in process, they may render the way defective and unsafe if left open to travellers. Pratt v. Cohasset, 177 Mass. 488. In undertaking the work without closing the street, it became the defendant’s duty, by either erecting and maintaining a sufficient barrier or posting notices or providing some other suitable means, to warn travellers that this part of the sidewalk had been withdrawn from the use of the public. Jones v. Collins, 188 Mass. 53. MacFarlane v. Boston Elevated Railway, 194 Mass. 183, 185.

The jury could find on the evidence, that for a period of at least two days the bricks had been out of place, leaving an open space where the plaintiff fell, and that a rope enclosing the portion under repair had been put up and kept in' position until about an hour before the accident, when it had been removed. If they reached this conclusion, then, at the time the plaintiff was injured, the defendant was engaged in repairing a public way which was left open to passing pedestrians without giving any warning that Because of its condition the sidewalk at this point was unsafe and dangerous. The defendant relies on Compton v. Revere, 179 Mass. 413, but there is a material difference in the use of á public way under the circumstances of the case at bar and the use of a street in process of construction, which the traveller knows is not graded nor fitted for public travel.

If the street was found to have been defective, there was evidence that the defendant knew, or in the exercise of reasonable diligence should have known, of the defect. Bingham v. Boston 161 Mass. 3. Campbell v. Boston, 189 Mass. 7. Harrigan v. Worcester, 198 Mass. 354.

Exceptions sustained.