321 Mass. 230 | Mass. | 1947
This action of tort is brought to recover compensation for personal injuries alleged to have been sustained as a result of the negligence of the defendants. At the close of the evidence each of the defendants filed a motion for a directed verdict in its favor. The motion of the defendant railway company was allowed and the plaintiff duly excepted. That of the defendant city was denied and exception was duly taken by it. The jury returned a verdict for the plaintiff against the city. The parties entered into a stipulation as follows: “In the event the court erred in directing a verdict for the defendant, Boston Elevated Railway Company, and the jury brings in a verdict for the plaintiff against the city of Boston, then the defendant, the Boston Elevated Railway Company, shall pay said verdict.”
The jury could have found the following facts: At about 2 p.m. on November 13, 1944, the plaintiff left the Peter Bent Brigham Hospital located on Huntington Avenue at or near the corner of Francis Street, crossed Huntington Avenue, and proceeded to a so called “safety zone” (a platform) located near the middle of the street “provided for persons intending to travel to intown Boston on the Elevated.” As she stood there, a warning bell was sounded by an inbound street car “for the purpose ... of getting her off the safety zone.” Proceeding to leave the platform, as did others there, she turned toward the southerly sidewalk. “Looking out for her safety” she observed “the heavy vehicular traffic approaching, and placed her right foot down on the macadam street!” The heel of the shoe on her left foot caught in a crack in the edgestone, which is the outer curbing of the reservation, and she fell forward to her knees and was injured. The “crack was a ragged break between two adjacent edgestones.” That condition had existed for two months before the accident. The “break . . . was one and one half inches wide on top, two
Each of the defendants contends that it owed no duty to the plaintiff with respect to the edgestone in question. Relevant facts bearing on that subject are these: In 1894 the board of street commissioners of the defendant city ordered Huntington Avenue widened and extended through an area including the locus of the. accident here involved. The order provided in part as follows: “And this board further orders that between Copley Square and Francis Street there be reserved under the authority conferred by chapter 324 of the Acts of the year 1894 in the middle of said avenue a special space for the use of street railways and for grass, of the width of twenty-five feet, with breaks therein as shown on the plan hereinbefore referred to.” Accordingly Huntington Avenue was widened as thus ordered and the reserved space was established. In 1896 the city installed edgestones or curbings, including that at which the plaintiff fell, along the outer boundaries of the reservation, entirely within the reserved space, the outer ’ facing of the edgestones marking the outér limits of the reservation. At times since the installation of the edge-stones the city has made repairs to these edgestones, and in 1944, in connection with work on Huntington Avenue, some of these edgestones were reset for grade by the city. The railway company “laid the macadam surface of the area between the edgestones.” Huntington Avenue between Copley Square and Francis Street is “one hundred feet in width, and is built with a central reserved space twenty-five feet wide for street cars, two roadways each twenty-five feet wide, and two sidewalks each twelve and one half feet wide .... The reserved space upon which the street cars run has been loamed with the intention of seeding it to grass.” “The pedestrian crosswalks on Huntington Avenue from the sidewalk to the reservation at the point
Statute 1894, c. 324, § 1, provides as follows: “The board or officers authorized to lay out streets, townways or highways in a city or town may, whether any such street or way is laid out under the provisions of law authorizing the assessment of betterments or not, reserve between the side lines thereof special space for the use of persons riding on horseback, special space for the use of street railways, whether operated by animal power, electricity or any other motive power except steam, special space for drains and sewers, and electric wires used for any purpose, and special space for trees, grass and for planting.” Statute 1923, c. 358, § 1, so far as here material, provides as follows: “. . . the Boston Elevated Railway Company shall keep in repair . . . the paving, upper planking or other surface material of the portions of streets, roads and bridges occupied by its tracks; and if such tracks occupy unpaved streets or roads, shall, in addition, so keep in repair eighteen inches on each side of the portion occupied by its tracks . . ..” There was evidence that Huntington Avenue between the reservation and the sidewalks was paved for vehicular traffic.
In Farrington v. Boston Elevated Railway, 202 Mass. 315, 317, the court, referring to the reservation on Huntington Avenue, said, “The avenue and cross over, including the granite curbing, were constructed by the city of Boston, upon which . . . rests the duty of keeping the streets in repair.” In Sears v. Boston Elevated Railway, 313 Mass. 326, 327, the accident that was the subject of that case occurred on the reservation on Beacon Street in Brookline, and the court said in part, “The establishment of such a reservation was the means employed to regulate traffic upon the way. . . . The portion of the street occupied by the reservation continued as a part of the way.” The
It follows from what we have said above that the case against the city was rightly submitted to the jury unless it can be said as matter of law that the alleged defect was not such within the meaning of the statute, G. L. (Ter. Ed.) c. 84. The city makes no contention that the alleged defect could not have been prevented or remedied by the exercise of reasonable care and diligence. It simply argues, relying on Galante v. Brockton, 305 Mass. 480, 481, Vellante v. Watertown, 300 Mass. 207, 208, and Sears v. Greenfield, 287
It was the duty of the city to keep the way in repair so that it may be “reasonably safe and convenient for travelers.” G. L. (Ter. Ed.) c. 84, § 1. The character of the way and the kind and amount of travel at the location of an alleged defect must be considered in the determination of whether it is an actionable one. MacDonald v. Boston, 318 Mass. 618, 619. See also Bagdikian v. Worcester, 318 Mass. 707, 708. And as was said in the MacDonald case, a “pedestrian upon that part of a way serving principally for the traffic of vehicles is not in the same position to complain of an unevenness in the surface as one upon a sidewalk.” In Galante v. Brockton, 305 Mass. 480, 481, where the condition complained of was a sinking of a curbstone to the extent of one inch and a separation thereof from the adjoining concrete block of but an inch, the condition did not appear to have existed at a point which the “plaintiff would be obliged to pass over in order to cross” an intersecting street. In that case the condition was at the outer edge of a sidewalk “but not at a cross walk or other place where travellers have occasion to cross the curb.” In the present case the break in the curbing was at a place where pedestrians would ordinarily be obliged to step on or over the curbing in order to reach or leave the platform which was used for discharging and taking on passengers of the railway company. See Callagy v. Boston, 297 Mass. 53, 55. In Vellante v. Watertown, 300 Mass. 207, the alleged defect in a sidewalk was a tilting of a granolithic slab for three fourths of an inch above the level of the sidewalk. In that case, in the opiffion of .the court, the imperfection was too slight to be held an actionable defect. In the present case the break was a “ragged” one, one and one half inches wide at the top and four or five inches deep. The jury could find that its width and depth were sufficient to allow the entry of the French heel on the shoe worn by the plaintiff to a depth sufficient to cause her to be thrown forward into the vehicular roadway, and that shoes with such heels were commonly worn by women. They could also have
In the circumstances of the instant case against the city we are of opinion that it could not have been ruled properly as matter of law that the break in the curbing was not an actionable defect, and that therefore the case was submitted to the jury rightly. See Smith v. Fall River, 295 Mass. 88, 90, and cases cited.
The foregoing opinion, in so far as it holds that it could not have been ruled properly that the break in the curbing was not an actionable defect, is that of a majority of the court.
Exceptions of the defendant city overruled.
Plaintiff’s exceptions overruled.
Judgment for the plaintiff against the defendant city on the verdict returned by the fury.