317 Mass. 242 | Mass. | 1944
This is an action of tort to recover for personal injuries which the jury could find were received by the plaintiff on February 10, 1940, while she was crossing Dartmouth Street, a public way in the defendant town, when she stepped into a depression, bringing her foot against the cover of a water box and causing her to fall and to sustain a broken hip. The defendant excepted to the denial of its motion for a directed verdict and to the refusal to grant two requests for instructions.
The defendant concedes that the condition of the way might properly be found to constitute a defect, but contends that there is nothing to show that the defect had existed long enough to enable the defendant in the exercise of reasonable diligence to discover its existence and remedy it. There was evidence that the cover of a water box projected above the surface of the way, that the street had settled around this cover as a result of the excavating and filling of a trench, and that this condition of the street had existed for more than a year prior to the accident. The evidence as to the knowledge that the town or its officials charged with the maintenance of the ways had or ought to have had before the injury to the plaintiff presented an issue of fact which was properly submitted to the jury. Connelly v. Boston, 206 Mass. 4. Cook v. Boston, 266 Mass. 159. Saunders v. Medford, 304 Mass. 464.
The defendant by its third request asked the judge to rule that the plaintiff had failed to give a sufficient and valid notice in conformity with G. L. (Ter. Ed.) c. 84, § 18, as appearing in St. 1933, c. 114, § 1. Upon receipt of the first notice the town called for another notice, and a second notice was furnished by the plaintiff. This last notice stated the time the injury occurred, gave the place of the
The final contention of the defendant is that the notice, when considered with the testimony, was inaccurate in stating the place and cause of the injury as a hole or depression, and that it therefore was entitled as requested by its fifth request to have the jury instructed to the effect that the burden of proof was upon the plaintiff to show that the defendant was not misled by the “plaintiff’s failure to give notice.”
The place of the accident was described in the second notice with enough particularity to give the defendant adequate information as to its location, and it corresponded exactly to the place shown by the testimony as the spot where the plaintiff was injured. An injury due to a defect in a highway is ordinarily attributable to the condition of the way at the place where it occurred, and the cause as stated in the written notice required by § 18 may be amplified and aided by the description of the place of the injury
Exceptions overruled.